HKSAR v. LI JIN

CACC 280/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 280 OF 2009

(ON APPEAL FROM HCCC NO. 93 OF 2009)

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REASONS  FOR  JUDGMENT

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Hon Line J (giving the judgment of the Court):

1.  Following a trial in the Court of First Instance before Deputy High Court Judge Longley, the appellant was convicted of trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance Cap 134. On 18th August 2010 we granted leave, allowed the appeal, ordered a retrial and indicated that we would provide reasons for our decision, which we now do.

2.  On the 21^st November 2008 the police found dangerous drugs, namely 45 gms of ice, 888 tabs of LSD and 37 tablets of nimetazepam, in a wardrobe in the bedroom of a flat of which the appellant was tenant.

3.  Some two months before the appellant had married. She testified that her husband lived in the flat with her, sharing the bedroom in question; that he took ice to her knowledge and that to her knowledge he stored his ice in the bedroom wardrobe.

4.  Her defence was that the drugs belonged to her husband and were solely possessed by him. She denied possession, saying that she had no intention to do anything in respect of the drugs and had done nothing in respect of them.

5.  It was thus, given her admitted knowledge and acquiescence to his storage, that the case called for careful directions upon possession in the context of items found in a matrimonial home.

6.  The grounds of appeal complained that the directions given failed to make clear that something more than acquiescence in the storage of the drugs was required and that a suggestion in the summing up that her failure to dispose of the drugs when her husband left the flat on a trip to the Mainland, as being indicative of possession, was wrong.

7.  The case against the appellant was put on the basis that she was a principal, the drugs being hers for her disposal or jointly possessed with her husband. The case was not left on the basis of the appellant being an aider and abettor of the husband’s possession.

8.  Was it necessary for the prosecution to prove more than knowledge and acquiescence and if so had the summing up reflected that?

9.  We found the law to be accurately stated in the recent English case of R v. Kousar [2009] EWCA Crim 139. It concerned a husband storing goods which offended trade mark legislation in the matrimonial home when his wife knew of it and acquiesced in it. The judgment included this:

“16. We make brief reference to the authorities cited to the judge. They are decisions of this court in the context of the possession of drugs, dealing with the limit of secondary liability in offences of possession. Read as a whole, they establish the proposition set out in Professor Smith’s commentary to the last of these cases, R v McNamara and McNamara [1998] Crim LR 278, of which Mr Weston has helpfully provided us with the full transcript. Professor Smith said this:

“The evidence must be sufficient to satisfy a jury either that each party was in possession with intent to supply or that someone (in the present case possibly a third party) was and the defendant not only knew that he was but also assisted or encouraged him in the enterprise.”

McNamara was relied upon by the Crown in the present case to establish that the earlier decision in R v Bland [1988] Crim LR 41 was to be decided on its own facts and was limited to its own facts. The facts in McNamara went considerably further. But in our judgment nothing in either case lent support to the contention that “ability to control”, in the sense in which those words are used by the Crown here, is enough. Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough. There are earlier decisions that were cited to the judge: R v Searle [1971] Cr.App.R 592 and R v Conway and Burkes [1994] Crim LR 826. They are to similar effect and in our judgment take the matter no further.

17.   To say that she had the ability to control, or the right to control, the goods in the house is no more than to say that it was her house, she lived there, she knew the goods were there; thus she had the right to demand that they should be removed, she acquiesced in their presence in the house and that was sufficient to render her in possession of them.

18.   In the course of argument some discussion was engendered about the normal domestic situation: is a husband or wife to be regarded as in joint possession of items in that house which are in fact the property of the other spouse? Is a husband to be regarded as in possession of clothing and cosmetics, for example, of which his wife is both the owner and the possessor? We venture to suggest that that concept is quite inappropriate. One is not in possession of one’s spouse’s personal property in that sense. The term “permission” has been used, that she permitted this property to be in the house. Permission may be something more than an acquiescence but even then is not in our judgment sufficient to render the permittor a person in possession of the goods. In the field of drugs offences, there is a specific offence of permitting premises to be used for certain activities but there is no equivalent in the legislation with which we are concerned. A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as a finding that she did exercise control.”

10.  It followed that in our view it was incumbent on the Judge to make clear that something more than knowledge and acquiescence was required, that the necessary control to be proved was control of the drugs themselves and that an ability to control was to be distinguished from the actual exercise of control.

11.  Taking the directions on possession as a whole we were of the view that the jury may well have been left with the impression that proof of the appellant’s knowledge of the presence of dangerous drugs and her permission or acquiescence in their storage inevitably put her in possession of the drugs.

12.  The case called for a clear warning that something more than knowledge and acquiescence was required. No such warning was given.

13.  Whilst sections of the summing up correctly repeated the standard directions on possession, they were not tailored to the situation that made the warning essential and where the directions were applied to the facts they tended toward the mischief that the warning addresses:

“Well, that particular evidence may assist you, members of the jury, in deciding whether she was in possession of the drugs on 21 November because here she was, having been left in Hong Kong by her husband, the husband was going off to Shenzhen without her and she, as you know, was the tenant of the flat.  On her own admission, she knew there were drugs being stored in the flat.  There was nothing stopping her, you may think, of disposing of the drugs as soon as her husband was gone.  So does that suggest to you that, even on her own account, she was in possession of the drugs in the sense that she knew that there were drugs in the flat but chose to exercise custody and control over them, at least in the sense of permitting them to remain in a flat of which she was the tenant?”

14.  The Judge also gave this direction:

“If you were satisfied that the drugs were in the defendant’s bedroom, that she knew they were there and that that bedroom was a place under her control and that she had either put them there herself or agreed, either expressly or by implication, that they could be there, then you are likely to find that the drugs were in her possession.”

15.  It seemed to us that this last direction begs the question at the heart of the defence case. What does “agreed by implication” mean in the circumstances? Is it acquiescence or something more that the jury has to look for? It is not unreasonable to suppose that a juror hearing this may have taken acquiescence or permission as implicit agreement.

16.  If the direction was designed to invoke the concept of joint enterprise then it failed to do so adequately, for it omitted the requirement that beyond the agreement to the criminal course of conduct there had to be some participation, however great or small. Failing to deal with participation, if indeed joint enterprise was the point, returns to the mischief of failing to deal with the question of something being required beyond acquiescence or permission.

17.  We would point out that the need for something more than knowledge and acquiescence is a matter of real importance in the context of joint possession between husband and wife. Criminals have spouses. They will know their spouse’s vices but it is not part of the criminal law to render them guilty without something more than merely putting up with it.

18.  We would suggest that judges in cases where joint possession is an issue add to the standard directions that ability to control is not the same as exercising control and that proof of the exercise of control requires proof of more than knowledge and acquiescence. In practical terms it must be pointed out that someone in the position of, as in this case, a wife must be proved to have done something to advance or promote or encourage her husband’s possession if she is to be found in joint possession.

19.  Accordingly, we were of the view that the directions were defective. Any application of the proviso (for there was evidence to suggest sole possession of the dangerous drugs) became unnecessary due to the consideration of how the case was left to the jury.

20.  The conduct of a tenant permitting another to store drugs in their premises is itself a crime contrary to section 37 of the Dangerous Drugs Ordinance. It carries a maximum of fifteen years imprisonment on indictment. We were told that there was no discussion as to whether or not it would have been proper to leave a count laying such an offence to the jury.

21.  The Court of Final Appeal made clear in HKSAR v Ho Hoi shing (2008) 11 HKCFAR 354 that a judge is under a duty to place an alternative before the jury if there was evidence upon which a reasonable jury might return an alternative verdict, even if it was not raised by the parties.

22.  We believed that if the section 37 offence had been left for the consideration of the jury as an alternative there was some prospect, less than fanciful, of them convicting upon it and acquitting of trafficking.  There was a danger that the jury may have judged the appellant’s conduct in permitting the storage of the drugs to be reprehensible and thereby have been disinclined to see her walk free, adding a following wind to the directions that blew toward a finding of joint possession.

23.  Accordingly we granted leave and treated the hearing as the appeal and quashed the conviction. We were of the view that the interests of justice called for a retrial, there being no argument to the contrary advanced by counsel for the appellant.

24.  We cannot but help remarking that if there had been discussion of the availability of the alternative offence it would likely have thrown the issues into better focus, as well as ensuring that a proper alternative was left to the jury. Likewise if there had been discussion about the proper directions, in particular with reference to R v. Kousar.

25.  The failure to take either step has led to this appeal and the order for a retrial. If the preparation undertaken for this appeal had been done prior to the trial, as it should have been, the position would not have arisen. Both counsel below should have raised the matter of proper directions for discussion and counsel for the prosecution, who did not before us, should have raised the question of the alternative verdict. The apparently casual approach to counsel’s duties has caused the expense of this appeal and a further trial, with the inevitable consequences that delay brings, not least to the appellant.

26.  We did not have power to direct that the indictment include a count contrary to section 37 of the Dangerous Drugs Ordinance, but point out that an application to add such a count can be made to the trial judge (see R v. Hemmings (2000) 1 Cr App R 360).