THE QUEEN v. CHAN HO KUEN AND ANOTHER

Headnote

    Summing-up. Possession of Dangerous Drugs for the purposes of unlawful trafficking.

(1) Rebuttal of presumptions. Simplified direction approved.

(2) Inferences. No special direction needed.

IN THE COURT OF APPEAL

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J U D G M E N T

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Hunter, J.A. :

1. This is the judgment of the court.

2. The applicants, Chan Ho Kuen and Kwok Kam Tong, both seek leave to appeal against their conviction on 12th October 1987 after trial before O'Connor J. Both defendants were then found guilty on one count of possessing dangerous drugs for the purposes of unlawful trafficking. The particulars on that count, asserted that they were in possession of the drugs on 17th July 1984 in Tai Po, Road Shatin, the drugs being quantified as 181.273 kilogrammes of a mixture containing no less than 157.973 kilogrammes of esters of morphine. Additionally, the second defendant was found guilty on a like count. The particulars in this case were that on the same day at Chap Wai Kon New Village he had in his possession 46.668 kilogrammes of a mixture containing 43.459 kilogrammes of salts of esters of morphine. So there were two counts before the jury. The first related to drugs said to be found in a van which was stopped in Tai Po Road, and the second concerning only the second defendant with drugs found in his flat.

3. The broad facts laid before the jury were really quite short, and can be summarised in this way. In the early hours of 17th July, both defendants, in different vehicles, went to a pier at Tai Po. The first defendant was driving a vehicle he had hired three days before. It was that vehicle that was then loaded with cartons later shown to contain the dangerous drugs referred to in count one. The vehicle then drove away with the first defendant at the wheel. The second defendant was in the back with a man by the name of Ko. The vehicle was then stopped by the police in Tai Po Road. The defendant was still at the wheel the other two were in the back either packaging or securing the cartons. Following his arrest, enquiries were made of the second defendant which eventually led to his admission that he was the tenant of the flat referred in count two. That flat was visited. He had the key to the flat. In a separate room, which was then locked, were found the drugs referred to in count two.

4. In those circumstances certain presumptions arose against the first defendant on the first count arising from his possession of the vehicle. Likewise certain presumptions arose against the second defendant on the second count arising from his tenancy of the flat. No presumptions arose against the second defendant on the first count.

5. The first main point taken by both a'pplicant's before this court is that the summing up of the trial judge was seriously defective, and confusing in relation to how the jury should deal with these presumptions and the rebuttal. The argument has tended to take a form which is well known in this court, and in the view of some altogether too frequent, an argument of form versus substance. The applicants main contention is that the judge departed from the orthodox route when he was dealing with this summing up. He took, what is called a shortcut, when he should have gone through carefully, all the motions which have been referred to in previous decisions. The result they assert is that in this aspect his summing up was unhelpful and confused.

6. The Crown in answer conceded that the judge took a different route. It asserts that the fact that it was a new route is by no means fatal. Indeed it put very much clearer light, it suggests, for the jury on a difficult problem than perhaps the more circuitous approach might have done. Mr. Harris for the Crown reminded us at, the outset of his argument of what Lord Morris of Borth-y-Gest said when giving the opinion of the House of Lords in McCreevy v D.P.P.⁽¹⁾ at p 284 :

"If, having regard to the facts and circumstances of a particular case, a summing up is held to have been inadequate and to have failed to set the jury on their proper line of approach or to give them proper guidance, a conviction might be held to be unsafe and unsatisfactory. But I am averse from laying down more rules binding on judges than are shown to be necessary".

Here he submits the trial judge in fact set the jury on a proper line of approach and gave them proper guidance.

7. In order to understand these submissions it is necessary to summarise briefly the pattern which this summing up took. It was a pattern which I am minded to think had been carefully thought out by the trial judge.

8. He started off by enumerating the four ingredients in the offence charged : first, that the drug, was a dangerous drug secondly, that the defendant was in possession : thirdly, that the defendant knew that it was a dangerous drug : and fourthly, that the drugs were for trafficking. He emphasised at that stage that it was the third ingredient, the defendants' knowledge which was the vital one for the jury to consider.

9. He then dealt with the various presumptions that arose particularly in the context of the first defendant on the first charge. In relation to that he spelt out the law in detail and summarised the position in this way :

"So one presumption as it were springs from another. If it is proven beyond reasonable doubt that he is in control of the van then the presumption arises that he was also in possession of the drug; and if it was proven that he was in possession of the drug another presumption arises that he knew it was such a drug".

This summary seems to us to be admirably simple and clear and in no way open to criticism.

10. Whilst going through the presumptions he told the jury that he was going to come in a moment to tell them how these presumptions night be upset. He does this in these terms. I must read the whole of it because it is the subject matter of criticism :

"Now members of the jury, I have told you about presumptions that would arise on the evidence. If they arise, there you have to consider whether they still remain in the light of all the evidence because the law - when providing for these presumptions the law also very sensibly provided for the possibility that on the facts of a particular case the presumption might be wrong and might work an injustice".

I pause there to say that criticism was made of the use by the judge of the word "wrong". It is quite apparent to us that he was using the word in the sense of wrong in fact as inapplicable to the facts of that case. What he was in fact doing for that purpose was simply adopting exactly the same language that Lord Diplock had used in the case of R. v. Kwan Ping Bong⁽²⁾.

11. The summing up then goes on :

"So the law has provided, as it were, a let-out in a case where particular presumptions arise; and in respect of each and every presumption that I have spoken to you about, this let-out would arise for consideration: And the let-out is this.

The let-out is to the effect that if in the light of all the evidence in the case you conclude that more probably than not the particular presumption would be wrong, then that presumption falls away and you would not rely upon it in arriving at your verdict. Note : in order for the presumption to fall away it is not sufficient for you to conclude that the presumption is as likely to be wrong as to be right. If you merely come to the conclusion that in the light of all the evidence a particular presumption is as likely to be wrong as to right, the presumption does not fall away. In order for it to fall away, it has to appear to be more probably wrong than right".

By that he plainly meant more probably wrong in fact. than right.

12. Now the first criticism that is made of this passage is the judge no wherein terms uses the phrase "balance of probabilities", which in more than one authority of this court has been recommended as time honoured. It is prefectly true that he does not. But on two occasions he uses the phrases "more probably than not" or "more probably wrong than right". That seems to us to be putting before the jury in plain simple language, not in the typical lawyer's legalise of balance of probabilities, the effect of the application of such balance and that standard of proof. So that it seems to us impossible to say that in using that phraseology the judge was not clearly placing before the jury the right standard in proof.

13. Secondly it said that the judge does not in terms refer to any onus upon the defendant; that he does not in termsrefer to any difference between the onus on the defendant and the onus on the prosecution; and the fact that the onus upon the defence is less than the onus upon the prosecution. That is again right; none of these concepts is explicitly referred to. But these concepts are ones which have given considerable problems to lawyers, both in expressing themselves upon them, and in explaining them to juries. Certainly if an attempt is made to spell out these concepts in full to a jury, it is necessay to go into them and to explain them. That is the subject matter of more than one decision of'this court. But no decision of this court has said, as we read it, that there is only one way in which these matters should be put before the jury; and or that there is only one right way of putting the matter to the jury.

14. What the Crown suggests about this summing up and this phraseology is that it cuts across both the concepts of the transfer of an onus of proof and of the differences by going directly to the result. What the vital sentence which starts the "let-out" means is this. First it tells the jury to look at all the evidence in the case. Secondly it says if in the result of all the evidence in the case you conclude that more probably than not (by a direct application of the right standard) the particular presumption would be wrong, wrong in fact, then the presumption falls away and you woule, no longer further rely upon it.

15. It seems to us that this is a very sensible and acceptable direction which avoids some of the complications of the other approach. It avoids some of the legalise which is implicit in the other approach, and is more likely to be understood by a jury. Both approaches in our judgment are prefectly acceptable and neither can be said to constitute an improper "line of approach" or a failure by the judge to "give proper guidance

16. Thirdly it said in this passage that the judge does not spell out the facts. That again is true. He was not there dealing with the facts; he was dealing with the principles. Later on he spells put with some care the facts relied upon by both defendants to show that they were not aware that the drugs, with which they were in close contact, were in fact dangerous drugs.

17. Finally it is said that the words "presumption falls away and you would not rely upon it in arriving at your verdict" are inadequate, because the judge, did not go on to say : "and there being no other evidence they are entitled to an acquittal". We were sad to hear that submission because it seems, with respect, to amount to an insult to the intelligence of the jury. It is difficult to understand how anyone can assert faith in a jury system and then treat them in the way which is implicit in the nature of such a submission. In those circumstances we can see no substance in the criticism of this part of the summing up.

18. The next major criticism of the summing, up is that the judge failed properly to deal with inferences. What he did was this. At the outset of his summing up he gave what is accepted to be an impeccable direction to the jury on fact; pointing out that they had to keep their feet on the ground and apply their common sense to the facts. It ends in this way : "And in considering the evidence you can draw inferences from established facts". Later he deals impeccably with the onus and standard of proof which lies on the prosecution "you would not convict a defendant unless you are satisfied beyond reasonable doubt that his guilt is proven and that really means that you are sure of his guilt".

19. What is submitted by the applicants in that respect is this. It is said that if the judge chose to refer expressly to inferences as he does in the first passage I have read, he should have gone on and given what I might call a full Kwan Ping Bong⁽²⁾direction, in Lord Diplock's words at the foot of p 5.

20. The first comment on that submission is that habit seems to die hard in this jurisdicition. This is a concept which goes back to 1838, to Hodge's case, when Baron Alderson used.language which is indistinguishable from that used by Lord Diplock. That gave rise, in certain jurisdictions, to a concept known as "the rule in Hodge's case". It is very much to the credit of the Full Court in Hong Kong that in Wong Mau Ting⁽³⁾, it rejected this rule and said that circumstantial evidence and inferences required no specific direction other than a clear direction upon the onus and standard of proof. Not long afterwards the Court of Appeal in Northern Ireland took a different view. That led to the appeal in McGreevy⁽¹⁾ to which I already referred. There Lord Morris spelt out the reasons why a special direction is not needed in this type of evidence :

"provided always that in suitable terms it is made plain to a jury they must not convict unless they are satisfied of the guilt beyond all reasonable doubt".

That was followed in 1979 by the decision in Kwan Pine, Bong⁽²⁾ and an attempt being made in several cases in this jurisdiction to elevate that into a separate "rule in Kwan Ping Bong⁽²⁾". There have been various attempts by this court to lay that subject matter at rest. One of the most recent was The Queen v. Yue Wai Chong⁽4) where in giving the judgment of the court Kemoster J.A. says

"in the absence of special: circumstances, providing, that the proper direction is given as to the burden of standard of proof no specific direction is required".

21. Indeed the submission made to this court in this case seems to us to confuse two concepts. The first part of this direction, namely that "inferences could be drawn from established facts" was necessary and right. The jury might stray into drawing inferences other than from accepted facts unless it was emphasised to them. Beyond that McCreevy⁽¹⁾ and the line of authority since shows that no further direction is necessary, except a clear direction, which this jury were given, as to, the onus and standard of proof.

22. The last point is taken by the second defendant alone. It can he described as the linkage point. The jury had to consider both counts as against him and the judge pointed out that they had to consider the evidence on each count separately. He then went on to deal with a linkage between the two counts which was obvious on the facts and had been raised by the evidence. It arose on the facts because of the similarities between the cartons and some gloves found in the van and found in the flat. It arose directly upon the evidence of both defendants, because both were saying that the man Ko was the real villain, and he was the person who had deceived them into getting themselves involvedin the transaction at all.

23. In respect to that the summing up started by pointing out that the evidence on each count had to be considered separately, unless" "you find that there is a linkage between the van, drugs and. the flat drugs". It was possible for them to find that the linkage between the two "was the second defendant himself". It goes on to point out first what the possible similarities were,' and then the nature of the defence with this defendant saying :

"I am not the link between this at all. I am just an innocent party. The real link is Ko and the man that he inserted in my flat as tenant of that room".

Then this passage appears which is that which is most criticised :

"Now it is only if you are sure that that is not so, and that the second defendant himself was the linkage, and that there was no sub-tenant; it is only if you are sure of that that you can consider the flat drugs when deciding whether he is guilty of the van count and that you can consider the van drugs when deciding whether he is guilt of the flat drugs".

24. We can see no ground for criticising that direction. The possible linkage was there. What the judge is telling, the jury in plain terms is this. They cannot start considering the evidence on each count other than separately unless they are satisfied that there is the linkage through the second defendant; and they cannot reach that point unless they are first satisfied and sure that the defendant's account in relation to this is not true. This seems to us, with respect to the argument to the contrary, a totally proper approach. We rather agree with the Crown's comment that it was inserted probably to protect the second defendant, and to make sure that the jury did not start jumping to unjustifiable conclusions.

25. We therefore dismiss both these applications.

26. The applicants also seek leave to appeal against the sentences imposed by O'Connor J. on 15th October, which was one of seventeen years imprisonment on the first applicant, the first defendant, in the court below on the first count, and on the second defendant, the second applicant, twenty years on the first count, and sixteen years on the second count concurrent. Those sentences were imposed by the trial judge on the basis of the facts that had been placed before him, and upon his view of the appropriate level of sentence having regard to the gravity of these offences. We have listened very carefully to the submissions that had been made to us on behalf of both applicants, but can see no reason for interfering with the judge's view. These applications are also dismissed.

(1) [1973] 1 WLR 276

(2) [1979] 1 HKLR 1, 6

(3) [1967] HKLR 730

(4) Unreported No 179 of 1987