R. v. CHEUNG KWOK KUEN

IN THE COURT OF APPEAL

1996, No. 51
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. I will ask Mr Justice Mayo JA to give the first judgment.

Mayo, J.A.:

2. The applicant seeks leave to appeal against his conviction for trafficking in dangerous drugs. He was convicted by Saied J after a trial before a jury of trafficking in 2030.52 grams of a mixture containing 230.53 grams of heroin hydrochloride.

3. According to the prosecution case police officers were outside premises at Pentland Street, Kowloon City on 22 June 1995. They observed the applicant who was carrying a bag climb over a railing. One of the officers approached the applicant and told him that he suspected him to be in possession of dangerous drugs and that he intended to search him. When he searched the plastic bag and saw its contents he suspected that it was dangerous drugs and he advised the applicant of this. According to the police officers the applicant then said "Ah Sir, give me a chance, they're white powder." He was taken back to the Airport Police Station where amongst other things he signed the post-recorded statement which contained this statement. It subsequently transpired that the bag did contain the dangerous drugs referred to in the charge.

4. The applicant gave evidence in his defence . Put very shortly he claimed to be in the transportation business. Earlier that day he had returned from China. He received an assignment to deliver goods for a Mr Wong. Mr Wong had travelled with the goods in his van to the area where he had been arrested. After Mr Wong left the van with a package he had received another assignment. While executing this he had received a telephone message from Mr Wong informing him that he had inadvertently left a bag in the van and that it contained invitation cards. It was then arranged that the applicant would deliver the bag to Mr Wong after he had completed the assignment he was on. He was late for this appointment on account of adverse traffic conditions. He had been looking for Mr Wong when he had been approached by the police officers. He had no idea that the bag contained dangerous drugs. When he had referred to being given a chance he had simply been asking for a chance to give the police an explanation for his possession of the bag. He also claimed that he had not been allowed to give a proper explanation in a statement by the police.

5. His grounds of appeal are in general terms.

6. Before us he claimed that the trial judge was prejudiced and had misled the jury. The judge had suggested that he could have seen through the wrapping that there were dangerous drugs in the bag. Such remarks would confuse the jury. According to the photos the dangerous drugs were packed and not visible to inspection.

7. Having ourselves considered the summing-up carefully I initially thought that it might conceivably have been misleading to the jury.

8. At 26 of the summing-up the judge states that he agreed with counsel that the sole issue in the trial was whether the applicant knew the nature of what was in the bag. He then went on to give general directions upon how the jury could consider whether the applicant had the requisite knowledge.

9. The problem which arises is that the directions which were given may not have been sufficiently adapted to the evidence which was before the jury.

10. For example at 53I he says:

" If you consider -- if you find that his conduct was suspicious, then you will take it into account, together with the rest of the evidence on this issue, to decide on whether or not he had sufficient opportunity to find out but turned a blind eye in terms of what I have explained to you a little earlier on.

If you find that he did, he turned a blind eye, you will find him guilty. But if you find that his version is true or it might be true or you are left with any reasonable doubt about it, then you will find that he lacked the requisite knowledge and find him not guilty."

11. It will immediately be appreciated that if the jury had accepted the applicant's evidence as to how he had come into possession of the bag this direction would certainly have been unsatisfactory. There was no reason for the applicant to consider what was in the bag which had been left by Mr Wong. His explanation that the bag contained printed invitation cards was plausible and there would have been no necessity for him to check the contents of the bag or "turn a blind eye" to the contents.

12. It is however necessary to consider the passage cited above in the context of the summing-up as a whole.

13. The judge did give directions upon how the jury should consider the question of knowledge on the basis that they rejected the prosecution case that the applicant had made the admissions. At 49S he says:

" On the other hand, if you reject the prosecution evidence concerning the admissions allegedly made by the defendant at the time of his arrest and consequentially reject also the post-record, Exhibit P14, for reasons he mentioned or for any other reason, if you reject that and - and as it is not disputed that the defendant was in possession of the dangerous drugs at the material time, albeit, unknowingly and innocently, then you would proceed to consider whether or not, on his own version, the defendant had deliberately turned a blind eye, as I have said, to facts from which ordinary men would realise that the contents of the bag were illicit or dangerous drugs and you may take this factor into account in deciding whether the defendant had or had not knowledge of the presence of the drugs inside the bag.

You must, therefore, consider the manner and the circumstances in which the bag was received, what knowledge, or means of knowledge or guilty knowledge, as the -- as to the presence of the dangerous drugs in those six packets within the bag or as to the nature of what he had received -- he had at the time of receipt or thereafter after the time he was found with it.

On such matters as are relevant to you in the entire evidence, you must make the decision whether, in addition to the physical custody of the bag, the defendant had the knowledge that he did possess what was, in fact, dangerous drugs which were inside those six packets in the bag."

14. It is evident from this passage that the jury are being required to consider the question of knowledge not only upon the applicant's evidence but also on the evidence as a whole.

15. This would appear to overcome the dilemma which arises out of focusing attention on knowledge rather than upon whether taking the evidence as a whole the prosecution had been able to establish at the requisite level that the applicant's version was highly improbable and incapable of belief.

16. The directions which were given by the judge on how they should consider the question of knowledge at 50 of the summing-up follow fairly closely the approach adopted by Lord Wilberforce at 435 of Warner v. Metropolitan Police [1968] 52 Cr.App.R. 373. It is appreciated that the case was concerned with possession of a package of prohibited drugs in a van rather than trafficking in a substantial quantity of dangerous drugs as is the position here. The observations concerning knowledge of the contents of the package are however applicable to the present case. It also needs to be borne in mind that the judge did give satisfactory directions upon what constituted trafficking and the approach which might be adopted having regard to the quantity of dangerous drugs which were seized.

17. Although I initially had some misgivings concerning the directions which were given I am satisfied taking the summing-up as a whole that the issues were sufficiently presented to the jury even had the jury been minded to reject the testimony concerning the admission. In my view the conviction in this case is neither unsafe nor unsatisfactory.

Keith, J.:

18. I have reached a different conclusion from that of Mayo, J.A. I shall explain as briefly as I can where things went wrong in this case, though I gratefully take the facts from Mayo J.A.'s judgment.

THE BURDEN OF PROOF

19. The sole issue which the jury had to decide was whether the Applicant knew that the bag he was carrying contained drugs. Since it was common ground that the bag which the Applicant was carrying in fact contained drugs, the burden of proof was on the Applicant to show, on a balance of probabilities, that he did not know that the bag he was carrying contained drugs. That was the effect of section 47(1)(a) of the Dangerous Drugs Ordinance (Cap. 134) which provides :

"Any person who is proved to have had in his physical possession ... anything containing ... a dangerous drug ..., shall, until the contrary is proved, be presumed to have had such drug in his possession."

Since knowledge is an ingredient of possession, a presumption that the Applicant had drugs in his possession amounted to a presumption that he knew that the bag he was carrying contained drugs.

20. The judge did not give any direction to the jury that on the sole issue which the jury had to decide the burden of proof was on the Applicant. However, this defect in the summing-up was not, of course, fatal to the Applicant's conviction because it was an error in the Applicant's favour. The Applicant was convicted in spite of the defect rather than as a result of it.

THE APPLICANT'S GROUND OF APPEAL

21. The Applicant is not represented, legal aid having been refused. In these circumstances, it is not all that surprising that the only point which the Applicant makes is untenable. He claims that the judge had been wrong to tell the jury that the Applicant would have been able to see through the wrapping that there were drugs in the bag. Having scrutinised the summing-up with care, it is plain that at no time did the judge say any such thing.

THE JUDGE'S DIRECTION

22. The evidence which primarily suggested that the Applicant knew that the bag he was carrying contained drugs was, of course, his alleged admission to the police that the bag contained "white powder". However, towards the end of his summing-up, the judge addressed the question of what the position would be if the jury was not sure that the Applicant had admitted to the police that it was "white powder" in the bag. The judge said at p. 50E-J that in that eventuality

"you would proceed to consider whether or not, on his own version, the defendant had deliberately turned a blind eye, as I have said, to facts from which ordinary men would realise that the contents of the bag were illicit or dangerous drugs and you may take this fact into account in deciding whether the defendant had or had not knowledge of the presence of the drugs inside the bag."

The earlier reference to turning a blind eye which the judge had in mind was his direction at p. 27F-J that

"knowledge might be inferred from evidence that the defendant wilfully shut his eyes to facts from which ordinary men would realise that the contents of the bag were dangerous drugs. But that inference is a process of reasoning based on the circumstances of the case and is not a presumption of law."

23. The significant words in the passage on p.50 are "on his own version". On the Applicant's version of events, he believed that he was delivering invitation cards, and he had no idea, let alone any suspicion, that what he was delivering was drugs. It is possible, I suppose, that the judge was telling the jury in this passage that, even without the Applicant's alleged admissions to the police, it was open to the jury to reject the Applicant's version of events

(i) if they were sure that the Applicant had been shutting his eyes to the obvious, and

(ii) if the only inference which they could draw from that was that the Applicant in fact knew that the bag he had been carrying contained drugs.

However, the language which the judge used is, in my judgment, far more consistent with the direction that, even if the jury accepted the Applicant's version of events, there were nevertheless circumstances in which it would still be open to them to convict the Applicant. At the very least, I do not think that one can exclude the possibility of the jury believing that to be the direction which the judge was giving them.

WAS THE JUDGE'S DIRECTION CORRECT?

24. Since on the Applicant's version of events he did not actually know that the bag he was carrying contained drugs, by what route could he be treated as knowing that there were drugs in the bag? It is only if knowledge can include something other than actual knowledge that the direction can stand. As it is, it is plain on the authorities that actual knowledge is not necessary. Something akin to "constructive" knowledge is sufficient. It was described in different ways in Warner v. Metropolitan Police Commissioner [1969] 2 AC 256, which is the leading authority on the topic. Thus, to paraphrase the words of Lord Morris of Borth-y-Guest at p.289, the Applicant would be treated as knowing that there were drugs in the bag if he had had the "means of knowledge", i.e. if he had had "an opportunity (whether availed of or not) to learn or discover, at least in a general way, what [was in the bag]". That was a theme which Lord Wilberforce picked up in his speech, though he emphasized that it was necessary for the jury to have regard to all the surrounding circumstances. At pp.310-311, he said :

"they must consider the manner and circumstances in which the substance, or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it; his legal relation to the substance or package (including his rights of access to it). On such matters as these (not exhaustively stated) they must make the decision whether, in addition to physical control, he has, or ought to have imputed to him the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance".

This passage was adopted and applied subsequently by the House of Lords in R. v. Boyesen [1982] AC 768.

25. I confess that I have some misgivings about the fairness of someone being convicted of a drugs offence when he did not actually know that he had any drugs in his possession. The Court of Appeal in England also had misgivings about it in R. v. Lewis (1988) 87 Cr. App. Rep. 270, in which May L.J. speculated whether the House of Lords in Warner might have been influenced by considerations of policy. However, he went on to say that these cases make it clear that

"the question in the end is whether on the facts the defendant is proved to have or ought to have imputed to him the intention to possess or the knowledge that he does possess what is in fact a prohibited substance".

In my view, that is now too well established for the courts to take a different view without statutory intervention.

26. There is no doubt that the judge had these passages in Warner in mind. Early on in his summing-up, he told the jury that

"possession, properly defined, is being knowingly in control of a thing in circumstances which have involved an opportunity (whether availed or not) to learn or discover, at least in a general way, what the thing is" (pp.10R-11B).

He went on to tell the jury that the prosecution had to prove that the Applicant

"came into possession of [the drugs] in circumstances which had enabled him to know, or discover, or would have enabled him, had he so wished, to know or discover, what it was before assuming control of it or continuing to be in control of it" (p.11E-I).

And he warned the jury that the prosecution would have failed to prove the case against the Applicant

"if it was shown that the defendant was genuinely mistaken as to its actual contents and that of their illicit nature and received them innocently, provided he had had no opportunity, since receiving the package or packets, to acquaint himself with the contents" (p.11M-Q).

Finally, towards the end of his summing up, the judge said :

"you must, therefore, consider the manner and the circumstances in which the bag was received, what knowledge, or means of knowledge or guilty knowledge, as the - as to the presence of the dangerous drugs in those six packets within the bag or as to the nature of what he have received - he had at the time of receipt or thereafter after the time he was found with it. On such matters as are relevant to you in the entire evidence, you must make the decision whether, in addition to the physical custody of the bag, the defendant had the knowledge that he did possess what was, in fact, dangerous drugs which were inside those six packets in the bag" (pp.50L-51B).

27. I am satisfied that in these passages the judge correctly directed the jury on the very limited circumstances in which it might be open to a jury to convict a defendant if they did not accept that the defendant had made admissions of the kind attributed to the Applicant in this case. Thus far, Mayo J.A. and I are in agreement.

WAS THE JUDGE'S DIRECTION APPROPRIATE?

28. Where Mayo J.A. and I part company is whether it was appropriate for the judge to give this direction in the present case. I accept that there were features of the Applicant's version of events which the jury would naturally have been sceptical about. For example, would a drug trafficker really have forgotten to take this substantial amount of heroin out of the Applicant's van? But the judge's direction was based on the assumption that the jury accepted the Applicant's version of events. On that version, there had been nothing to put the Applicant on enquiry that things were not as they seemed. Nor on the Applicant's version had he had any opportunity to see what was in the bag : after all, the packets of heroin had been wrapped in adhesive tape. It follows that I do not see how, on the assumption that the jury accepted the Applicant's version of events, there was room for any verdict other than one of not guilty.

29. Not without hesitation, I have reached the conclusion that the fact that this direction was given was fatal to the conviction. The jury would have been bound to think that it was open to them, even if they accepted the Applicant's version of events, to convict the Applicant. After all, that was what the judge had told them. Indeed, at p.53O of the summing-up, the judge actually told the jury :

"If you find that ... he turned a blind eye, you will find him guilty."

Since on his own version of events there was nothing obvious which the jury could find he was turning a blind eye to, it would not have been open to the jury to find the Applicant guilty on this basis. Although it is overwhelmingly likely that the jury convicted the Applicant because they rejected his version of events and were satisfied that he had made the admissions attributed to him, I cannot exclude the possibility that they convicted him, even though they accepted his version of events, because the judge told them that it was open to them to do so. That is why this is not a case for the application of the proviso. I cannot say that the jury would inevitably have convicted the Applicant if the judge had not given them the direction which he did.

30. I have not overlooked the direction which the judge gave to the jury at the end of his summing-up:

"But it you find that his version is true or it might be true or you are left with any reasonable doubt about it, then you will find that he lacked the requisite knowledge and find him not guilty."

I understand that Bokhary, J.A. will be saying that that put things right. I cannot agree. The fact that the jury were told, in effect, that it was not open to them to convict the Applicant on his own version does not lie easily with the earlier direction that it was open to them to do so. There is no getting away from the fact that the jury were given inconsistent directions. I cannot exclude the possibility that they followed the former and ignored the latter.

CONCLUSION

31. For my part, therefore, I would have granted the Applicant leave to appeal against his conviction, I would have treated the hearing of the application as the hearing of the appeal, I would have allowed the appeal, I would have quashed the conviction, and I would have wanted to hear from counsel as to whether this was an appropriate case for a retrial of the Applicant to be ordered. However, since I understand Bokhary JA to have reached the same conclusion as Mayo J.A., the order will be the one which they propose.

Bokhary, JA:

32. Theoretically, constructive knowledge (which is sometimes called "shut-eye" knowledge) is sufficient knowledge for the purpose of possession in prosecutions for unlawful possession of dangerous drugs or trafficking therein. Otherwise a man could, despite his suspicions about what he was being asked to do, accept a huge sum of money for making a relatively easy delivery of what happen to be dangerous drugs but avoid the legal consequences simply by not asking any question for fear of the awkward answer which he might get.

33. But that does not mean that the sort of direction which is appropriate in a case like Warner v. Metropolitan Police Commissioner [1969] 2AC 256 would be appropriate in all drug cases. The House of Lords did not set out in that case to lay down a model direction on possession to be given to juries in all cases involving possession.

34. A "shut-eye" knowledge direction would be called for in some cases. An example would be a case in which the evidence points not so much to the accused knowing all about what was going on but more to his having deliberately turned a blind eye to the truth. But the present case is not such a case; and wholesale use of "shut-eye" knowledge directions is not to be encouraged.

35. Moreover, I do not think that it was right for the judge to have invited the jury, as he did, to consider whether on the applicant's "own version" he had turned a blind eye.

36. Ultimately, however, no fatal harm was done in the present case. For right at the end of the summing-up, just before directing the jury on majority verdicts, the judge told them:

"But if you find that his version is true or might be true or you are left with any reasonable doubt about it, then you will find that he lacked the requisite knowledge and find him not guilty."

In the circumstances of the present case, and giving the summing-up a fair reading as a whole, which is how a summing-up is to be read, that plainly put things right.

37. I, too, would dismiss this application. By a majority therefore, it is dismissed.