CHAN CHUEN HO v. HKSAR

FACC No. 4 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 1998 (CRIMINAL)

(ON APPEAL FROM CACC No. 458 OF 1997)

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Between:

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J U D G M E N T

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Chief Justice Li :

1. I agree with the judgment of Mr Justice Ching PJ.

Mr Justice Litton PJ :

2. I agree with Mr Justice Ching PJ's judgment.

Mr Justice Ching PJ :

3. The appellant was put upon his trial before a jury on two counts of trafficking in a dangerous drug, both offences being alleged to have occurred in the early hours of 28 October 1996. The first, of which he was convicted, was that he was trafficking in 197.17 grammes of a mixture containing 37.28 grammes of heroin hydrochloride in Austin Road outside a residential building known as No. 150A. The second, of which he was acquitted, was that he was trafficking in a mixture of 166.47 grammes containing 126.53 grammes of the same drug at what was described as the middle room on the third floor of that building. He appealed to the Court of Appeal against his conviction on the grounds of a misdirection. The Court of Appeal held that there was indeed a misdirection but applied the proviso to section 83 of the Criminal Procedure Ordinance, Cap. 221, and dismissed his appeal. He was granted leave by the Appeal Committee to appeal to the Court of Final Appeal on the ground that a substantial and grave injustice had occurred.

4. So far as is relevant to the conviction, the evidence of the prosecution was that sometime after 3:00 am of the morning in question a party of police was on duty in Austin Road. They saw the appellant emerging from the building and searched him. They found on him the dangerous drugs the subject of the first count, which were contained in seven reusable plastic bags themselves contained in a larger plastic bag. He had almost $13,000 on him and a key. He gave no answer to questions about these drugs but did say that the key found upon him was the key to the premises mentioned in the second count. A search of those premises revealed the drugs the subject of that count. The appellant's evidence was almost wholly different. He was in employment from which he claimed he earned $12,000 to $13,000 per month. He was not arrested outside the building at all. He was arrested elsewhere when he had been going to repay a loan of $9,000 to a friend. He had been beaten and had had the drugs planted upon him and had been taken to the premises mentioned. No search of those premises was conducted in his presence. He had rented the room but had not moved in. He was still living with his mother in Shatin.

5. If the jury accepted the evidence of the prosecution briefly outlined above they would have been entitled to find that the appellant was in possession of the drugs mentioned in the first count even without the assistance of any statutory presumptions. The trial judge correctly directed the jury on those presumptions arising under section 47(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134, and told them that the standard of proof required of the appellant in rebutting them was one upon the balance of probabilities. It follows from the conviction that they must have found the possession proved. No attack is made on the directions as to possession.

6. There is, however, now no statutory presumption as to the intention to traffick. Having correctly directed the jury on possession and on the presumptions as to possession, the trial judge then gave the direction of which complaint is made. He said,

“Failure to rebut the presumptions will result in the accused’s conviction as the prosecution will have proved beyond a reasonable doubt on the whole of the evidence adduced that he did have possession of the dangerous drugs, the subject of the two counts, and that his possession was for the purpose of trafficking in them.”

Almost immediately afterwards he said,

“Additionally, the prosecution has put a number of matters before you, each of which it invites you to accept as having been proved …. When these various matters, if established, are looked at together, the only reasonable inference to be drawn from them is that he was in possession of the two lots of drugs in order to traffick them.”

He then listed eight matters four of which could only relate to the second count. One of them, the fifth, related to both but three of them related only to the first count.

7. Of those relating to the first count, the first was that the drugs were packed as already described. The second was that the drugs were found in the appellant’s possession as he was leaving the building in which he had rented accommodation. In the fourth, he referred to the total quantity of the drugs in both counts and described it as substantial. The fifth was that when the appellant was searched he had a large sum of money in his pocket. As to this last matter, prosecuting counsel paid tribute to defence counsel for the way he had dealt with it and said that it would be quite improper to seek any order in relation to it. Nothing more need be said about it. Since there was an acquittal on the second count, the discovery of drugs in the premises he had rented in the building cannot be relevant. It may be added that the drugs said to have been found in the premises were of a greatly different purity from those found on him so that there is no apparent connection between the two lots. It remains that he did have premises in the building and the evidence was that he was stopped in the street in the early hours of the morning with a large quantity of drugs when he was leaving that building. He was not going home to Shatin. Having regard to his defence, there was no explanation as to why he had the drugs on him and there was no evidence that they were for his own use or that he was either an addict or a user of this type of drugs.

8. The direction was word for word the same as that which the same trial judge gave in another case of trafficking in HKSAR v. Chan Chor Yim [Unreported, Criminal Appeal No. 435 of 1997]. Five months after the direction in this case the Court of Appeal in that case said,

“We think it unlikely that the jury would have taken the words complained of to mean that the presumption proved the purpose given that the judge made reference 'to the whole of the evidence' and then immediately turned to deal with the way in which possession for trafficking could be proved by inference arising out of the amount. Moreover, the misdirection, given that there was one, concerned a matter about which there was no real issue. The only inference that could possibly have been drawn, given the quantity of drugs involved, was one of possession for the purpose of unlawful trafficking. The misdirection occasioned no miscarriage of justice and we have no hesitation in applying the proviso.”

In that case the appellant had been seen driving a vehicle into a car park where he handed over 5,216.07 grammes of a mixture containing 4,748.11 grammes of methamphetamine hydrochloride. There could have been no doubt that he was trafficking. In the present case, the Court of Appeal looking at the whole of the summing up and at the evidence took the same course.

9. If the passage complained of is read in isolation it is clear that it was a misdirection. It was apt to be understood as meaning that as a matter of law there is a presumption of trafficking once possession is proved. Understood in that way it reversed the burden of proof on the question of trafficking. Then, in the words of Lord Diplock in Kwan Ping Bong v. The Queen [1979] 2 W.L.R. 433 at 438,

“Where, as is not uncommon in modern legislation dealing with drugs and other dangerous objects or materials, there is provision that on proof by the prosecution of the existence of certain facts some other fact shall be presumed unless the contrary is proved (in the instant case guilty knowledge on the part of the accused), the effect of the provision is to convert an inference which at common law the jury would not be entitled to draw unless they were satisfied beyond all reasonable doubt that it was right, into an inference which they are bound to draw unless they are satisfied on the balance of probabilities it is wrong. So they might draw it even though they think that it is equally likely to be right as to be wrong.”

It is a matter of fundamental importance that a jury should be clearly and accurately directed in matters of the burden and standard of proof. So far as the application of the proviso is concerned, reference may be made again to the words of Lord Diplock in Kwan Ping Bong v. The Queen [supra at 439],

“A misdirection as to the onus of proving an essential fact in issue seldom provided an appropriate case for the application of the proviso.”

That does not mean, however, the proviso should never be applied in a case of that type. See, for instance, Lord Diplock at 438G of the same report. It remains to consider whether the present case is one of the rare occasions in which the proviso should be applied.

10. Mr Andrew Macrae, who appeared for the appellant before us and in the Court of Appeal, accepts that the misdirection in question should not be read in isolation. When that is done, he says, it is to be noted that the factors listed by the trial judge as those from which an intention to traffick could be drawn were preceded by the words, “Additionally, the prosecution has put a number of matters before you ....’ He referred to R. v. Ching Kwok Wing [Unreported, Criminal Appeal No. 4 of 1994]. In that case the appellant was convicted of trafficking in a mixture containing 104.08 grammes of esters of morphine. The trial judge gave no directions as to possession and trafficking at all. The Court of Appeal upheld the appeal and refused to apply the proviso but ordered a retrial. With respect, that decision does not assist. Not only was there a total lack of directions but there was evidence from defence witnesses other than the appellant which was material. Mr Arthur Luk, Deputy Director of Public Prosecutions, who appeared for the respondent pointed to numerous passages in the summing up where the trial judge had pointed out clearly that the presumptions were only as to possession and knowledge and where the judge had dealt separately with possession and trafficking. He drew attention to the fact that the direction complained of contained the words, “... on the whole of the evidence ....” Those competing submissions were directed at whether the jury could have been under any misapprehension as to what the prosecution had to prove.

11. The circumstantial evidence against the appellant was strong. He was in possession of a large quantity of drugs but it was not so large as to be incompatible for being for his own use. They were packaged in a way suitable for sale but they could have been purchased by him in that form. They were found on him in the street in the very small hours of the morning. They were found on him after he had emerged from a building in which he had rented premises. Having regard to his defence, which failed on possession, there was no reason advanced why he should not have left them in those premises. There was no evidence that he was on his way home to Shatin. His own evidence was to the contrary. Large though it was, the quantity was not such as to lead inevitably to a conclusion of trafficking. There was no evidence that he was an addict or a user of the drugs but that, in the circumstances, is a neutral factor. It is not to be thought that any person with any amount of drugs found in the streets in the early hours of the morning must be guilty of trafficking. I do not agree with the Court of Appeal that properly directed there would inevitably have been a conviction for trafficking. Strong though the evidence was, there remains a possibility that the jury may have convicted him of simple possession rather than trafficking.

12. This case has been a worrying one. It is fundamental that jurors must be assumed to be acting on what they have been told, or may think they have been told, is the law. It is therefore of the greatest importance, for instance, that where an offence is one involving two factors to only one of which statutory presumptions apply they must be carefully directed. There was here a clear misdirection so that the conviction on trafficking cannot stand. Given that there was a possibility of a conviction of simple possession on the available evidence this is a case where, by the slimmest of margins, the proviso cannot be applied.

13. The matters in question occurred some time ago and if a retrial were to be ordered there would be a further lapse of time before the re-hearing. In the circumstances my conclusion is that the best course would be to quash the conviction on trafficking and to substitute therefor one of simple possession. I agree with counsel that on such a conviction at trial the appellant would have received a sentence of four years. I would therefore quash the sentence of six and a half years imprisonment and substitute therefore one of four years. In my judgment this appeal succeeds to that extent.

Mr Justice Bokhary PJ :

14. I agree with the judgment of Mr Justice Ching PJ.

Lord Nicholls of Birkenhead NPJ :

15. I agree with the judgment of Mr Justice Ching PJ.

Chief Justice Li :

16. The Court, being unanimous, quashes the conviction on trafficking and the sentence of six and a half years imprisonment and substitutes therefor one of simple possession and a sentence of four years imprisonment. The appeal is allowed to that extent.

Representation: