THE QUEEN v. TSANG KWOK WING

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 26 OF 1988

_______________

J U D G M E N T

_______________

Macdougall, J.:

1. This is the judgment of the court.

2. After a contested trial before Hopkinson J. and a jury the applicant was convicted of being in possession of two 0.38 calibre revolvers, one 9mm calibre pistol and 150 rounds of ammunition without a licence. He was charged on the same indictment with being in possession of 12.437 kilograms of cannabis for the purpose of unlawful trafficking. To this count he pleaded guilty.

3. The judge sentenced him to five years imprisonment on the drugs count and to ten years on the arms and ammunition count, and ordered that the sentence of ten years be served consecutively to the first three years of the five years sentence. The overall sentence was thus one of thirteen years imprisonment.

4. The applicant subsequently sought leave to appeal against his conviction on the arms and ammunition count and against his overall sentence. At the hearing we refused both applications and stated that we would give our reasons later. This we now do.

5. There was unchallenged evidence that the applicant was an able seaman aboard HMS Swift when it sailed from Hong Kong to Thailand on 27th August 1987. After the vessel had reached Thailand members of the crew, including the applicant, went ashore and spent a number of days in Bangkok and Pattaya.

6. On the vessel's return to Hong Kong a police party from the Narcotics Bureau boarded her to conduct a search. The crew were required to line up on deck and were then taken below one by one for a search of their belongings.

7. While this procedure was being conducted, but before it became his turn to be taken below, the applicant announced to a naval lieutenant that he thought he knew what the police were looking for and that he had been given some bags in Thailand to bring to Hong Kong.

8. On hearing this the lieutenant escorted him to a detective sergeant to whom the applicant said that when he was in Thailand someone had asked him to bring two bags to Hong Kong. He added that he wondered if these were what the police were looking for.

9. He was then taken to the locker that had been allocated to him on the voyage and to which he had the key. Inside the locker the police found a holdall and a haversack.

10. On opening the holdall they discovered underneath a camera and some shirts eight bags of what was suspected to be cannabis.

11. In the main compartment of the haversack they discovered a further five bags of suspected cannabis and a blue shirt. In the front pocket of the haversack was one revolver in a holster and one pistol, both of which were wrapped in newspaper. There was also a box containing 50 rounds of ammunition. In the right hand pocket of the haversack was another holstered revolver wrapped in newspaper, and in the left pocket the police found a further two boxes each containing rounds of ammunition. There were also two small batteries and a roll of film in the left pocket. Subsequent analysis confirmed that the contents of the thirteen bags were in fact cannabis.

12. On completion of the search, the sergeant arrested the applicant and made an entry in his notebook which, after reciting that the applicant had been arrested in connection with the thirteen bags of suspected annabis, the three hand guns and three boxes of ammunition, set out the words of the caution. Having read the entry the applicant signed his name to indicate that he understood. He then requested the sergeant to write the following statement at his dictation.

"Regarding the above-mentioned articles, I myself know nothing. I do not know what the stuff inside was either. This time I went on board the vessel to Thailand. Originally (I) went there just to make fun. At Pattaya, I met a friend from Hong Kong. He is called 'Fei Lo Piu'. Together with 'Fei Lo Piu' was a person surnamed WONG. They told me to take some stuff back to (Hong Kong for them because they would take a plane and they would not be able to carry such large quantity of luggage As they knew that I had come by vessel, they asked me to take the luggage back for them. (They said that) on my return to Hong Kong, I was to go to the carpark on the ground floor of Hsin Kiang Restaurant in Wanchai and then hand them over to the person surnamed WONG, and that Ah Piu would then call me in the afternoon and treat me to tea. That is all."

13. The police later took the applicant to the car park in Wanchai where he pointed out a car in which two men were seated and identified one of them as being the man Wong to whom he had referred in his statement. Wong was then arrested.

14. At the conclusion of the prosecution case, which was virtually unchallenged, the applicant elected to go to the witness box.

15. He claimed that in Pattaya a friend named Ah Piu had requested him to carry some cannabis to Hong Kong and that he had consented to do so. On the following day Ah Piu came to the applicant's hotel room with the holdall and showed him the cannabis. While the applicant was in the bathroom having a bath Ah Piu repacked the holdall and, on discovering that it was too bulky, placed some of the packages in the applicant's haversack, telling him that by doing so they would not be so easily discovered. The applicant, being absent during this operation, did not see the handguns and ammunition being placed in his haversack."

16. After he had taken his bath he accompanied Ah Piu to the hotel coffee shop where Ah Piu told him to hand the goods to Ah Wong in the car part; in Wanchai. The two men then separated. According to the applicant he then brought the contents of the holdall and haversack to Hong Kong in complete ignorance of the fact that they contained the arms and ammunition.

17. Thus although his testimony was not entirely consistent with what he had told the police, his contention from the day of his arrest to his trial was that he was unaware, of the existence of these articles until the police had discovered them in his haversack.

18. The relevant provisions of the Arms and Ammunition Ordinance Cap. 238 are as follows.

Sec. 13(1) Ho person shall have in his possession any arms or ammunition unless-

(a)  he holds a licence for, possession of such arms or ammunition or a dealer's licence therefor

Sec. 2(2) For the purposes of sections 13, 15 and 24-

(a)a person is in. possession of arms or ammunition or a any documents, keys or other things mentioned in section 24 if they are actually, in his possession or under his control or are held by some, other person subject to his control or instructions or for him or on his behalf;

19. Sec. 24(1) Any person who is proved -

                (a)  to have had in his possession -

                (1)     anything whatsoever containing any arms or ammunition;

                (ii)      the keys of anything whatsoever containing any arms or ammunition;

(iii)     the keys of any place, premises or vehicle or part of any place, premises or vehicle in which any arms or ammunition are found;

(b)....................

shall, until the contrary is proved, be presumed to have had such arms or ammunition in his possession for the purposes of sections 13 and 15

20. The first ground of appeal concerned the judge's direction to the jury that if the prosecution succeeded in proving beyond reasonable doubt that the applicant had in his possession either the haversack containing the firearms and ammunition, or the key to the locker in which they were found, the presumption under section 24 arose, and that the onus of proof shifted to the applicant to rebut that presumption by showing, on the balance of probabilities, either from his own testimony or from any part of the prosecution, case, that he did not know of the existence of the arms and ammunition.

21. Mr. Howard, who appeared for the applicant in this court, submitted that the judge erred in directing the jury that in order to rebut the presumption the applicant was required to prove that he had no knowledge of the existence of the arms and ammunition in his baggage. It was Mr. Howard's contention that the burden of proving the element of knowledge rested on the Crown, and remained so throughout the trial notwithstanding that the presumption had arisen under section.24 that the applicant had the arms and ammunition in his possession. In short, where the presumption under section 24 arises, although the onus of disproving possession rests on the accused, the Crown still bears the burden of proving that he knew, the articles in, question were arms and ammunition.

22. The essence of this submission is that the concept of possession does not include the element of knowledge.

23. In order to support this contention Mr. Howard sought to contrast section 24 of the Arms and Ammunition Ordinance and section 47 of the Dangerous Drugs Ordinance. Both sections are similar in that the effect of section 47(1) is that a presumption of possession of a drug arises where the drug is found in circumstances similar to those in which the presumption of possession of arms and ammunition arises under section 24(1) of the Arms and Ammunition Ordinance.

24. However, section 47 contains in subsection (3) a further provision which is absent in section 24. It reads:

"(3) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug."

25. Mr. Howard submitted that it follows from this that without the existence of a presumption as to knowledge, the onus remains on the Crown throughout the trial of proving that an accused person knew that whatever drug has been proved or presumed to be in his possession, custody or control was the drug named in the charge. Since there is nothing in the Arms and Ammunition Ordinance that corresponds with section 47(3) of the Dangerous Drugs Ordinance, the burden of proving that the applicant knew that the arms and ammunition were in his baggage continued to rest on the Crown even though the presumption as to possession had arisen.

26. We do not think that it is necessary to consider why when enacting the Dangerous Drugs Ordinance the legislature thought it desirable to add to the provision creating,a presumption as to possession a further provision creating a presumption as to knowledge. Nor do we find it necessary to consider the provisions of the Dangerous Drugs Ordinance in interpreting section 24 of the Arms and Ammunition Ordinance.

27. There is no definition of possession in the Arms and Ammunition Ordinance. Leaving aside both offences of strict liability with which we are not concerned here, and differing statutory provisions, we are of the opinion that, where the possession of an article has the consequence of subjecting the possessor to a penalty under the criminal law, the concept of possession must include the element of knowledge. In the present case this means knowledge on the part of the applicant that the arms and ammunition were present in his baggage. Thus once the presumption as to possession arose under section 24, the applicant was presumed, until the contrary was proved, to know that the two revolvers, one pistol and 150 rounds of ammunition were in his baggage.

28. In DPP v Brooks [1974], AC 862 at 866 Lord Diplock defined possession in these terms:

"One has in ones possession whatever is, to ones knowledge physically in ones custody or under ones physical control."

29. Lord Scarman in his speech in R v Boyeson [1982] AC 768 at 773, with which the other members of the House agreed, put it this way :

"Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature; but you do not possess it unless you know you have it."

30. No doubt it was with this concept in mind that the draftsman of section 47 of the Dangerous Drugs Ordinance considered it advisable to add by way of subsection (3) a presumption as to knowledge of the nature of the drug.

31. In our view the judge correctly stated the law when he directed them that once the presumption of possession arose it was for the applicant to rebut it by proving that he did not know the arms and ammunition were in his baggage.

32. The second ground of appeal was that the judge misdirected the jury by telling then that the exculpatory parts of the applicant's cautioned statement were not "evidence of the truth of the contents" nor were they "capable of proving the excuses or assertions contained in the statement".

33. It is plain from the context of the whole of the passage in which the words quoted above were used that the judge was referring to the applicant's assertion in the statement that he was unaware of the nature of the contents of both the holdall and of the haversack.

34. Mr. Howard initially submitted that by giving this direction the judge was in effect telling the jury that they could not take into account the exculpatory parts of the applicant's statement in determining the vital matter in issue, namely whether he was aware that the arms and ammunition were in his baggage.

35. Although we confess that we find the direction complained of to be somewhat obscure, we note that the judge went on to tell the jury that they should take into account any exculpatory explanation or qualification, as such showed the context, in which the statement was made and was capable of demonstrating consistency on the part of the applicant in maintaining "the same story from start to finish".

36. Mr. Howard accepted that.this was not a case in which a defendant had elected not to testify but instead had sought to rely for his defence on the exculpatory material contained in his cautioned statement that had been put in evidence by the Crown. Indeed the applicant gave evidence and his defence was fully before the jury for their consideration. Moreover, what he said in his statement as to his ignorance of the existence of the arms and ammunition was left to the jury as evidence of his consistency in asserting this claim. During the course of his submission, Mr. Howard, with his customary candour, accepted that this was so.

37. Assuming for the purposes of this appeal that the law in Hong Kong as to the effect of an exculpatory explanation contained in a statement made by an accused person and put in evidence by the Crown, is as stated by the House of Lords in R v Sharp [1988] 1 All ER 65, and not as that expressed by the Privy Council in Leung Kam-kwok v R [1984] 81 Cr App R 83, we are of the view that notwithstanding the words complained of in this ground of appeal, the jury would not have been misled.

38. For these reasons therefore the application for leave to appeal against conviction was refused.

39. The maximum penalty for the offence of being in possession of arms or ammunition without a licence is one of imprisonment for fourteen years and a fine of $100,000. In view of the nature and quantity of the arms and ammunition involved and the fact that the circumstances of possession were that the applicant had smuggled these articles into Hong Kong, we do not think that the sentence of ten years for that offence was wrong. The sentence of five years for the offence of being in possession of such a large quantity of cannabis is consistent with the guidelines laid down in Chan Chi-man (1987] HKLR 221. Although the overall sentence of thirteen years is a heavy one, we are of the opinion that it is neither manifestly excessive nor wrong in principle. The application for leave to appeal against sentence was therefore refused.