R. v. NG CHIU LEUNG

1995, No.284

(Criminal)

IN THE COURT OF APPEAL

___________

_______________

J U D G M E N T

_______________

P. Chan, J. (delivering the judgment of the Court)

1. The applicant who was the 2nd defendant in the court below, was jointly charged with the 1st defendant for unlawfully trafficking in a dangerous drug, namely 246.65 grammes of a mixture containing 193.84 grammes of salts of esters of morphine. The jury, by a majority verdict, acquitted the 1st defendant but unanimously found the applicant guilty of the charge. He was sentenced by Deputy Judge Wong to 11½ years' imprisonment which is to run consecutively with the sentences of 18 months being served by him in connection with some other offences. He now applies for leave to appeal against both conviction and sentence.

2. The Crown case was this. On 17th May 1994, shortly after midnight, the applicant and the 1st defendant were standing by the side of Ma Tong Road in Yuen Long when police officers were passing by in a patrol car. The 1st defendant was seen handing over a bag to the applicant. When the police approached them, both tried to flee. The applicant, while being chased after by the police, was seen to have dropped something onto the ground. It was retrieved by the officers and was found to be a bag containing dangerous drugs in the form of two blocks of heroin and a batch of plastic tubes. Both the 1st defendant and the applicant were arrested by the officers.

3. The 1st defendant told the police upon caution that the dangerous drugs were not his but belonged to the applicant. Later in the police station, he refused to sign on the envelope used to contain the bag of dangerous drugs as exhibit. As for the applicant, when the bag of dangerous drugs was shown to him, he was asked what was inside but made no reply. Upon caution back at the police station, he said that this was given to him by the 1st defendant and he was told to keep it.

4. At the trial, both the 1st defendant and the applicant gave evidence. The 1st defendant said that on that night, while he was working in a karaoke, in which he was a partner, he received a telephone call from the applicant who asked him to come out for a talk. He said that the applicant owed him some money and so he went to meet him hoping to get repayment. When they subsequently met, the applicant gave him a bag containing something inside and asked him to keep it in his karaoke. When he asked the applicant what it was, the latter did not give any answer. So he returned the bag to the applicant. According to the 1st defendant, it was at this time that the police came and arrested them. The 1st defendant also called his business partner who testified that he saw the 1st defendant receive a telephone call and mention something about money. After a while, he left the shop.

5. In his evidence, the applicant admitted that he was a drug addict and had been in trouble with the police before. He had borrowed $5,000 from the 1st defendant. On the night in question, he wanted to obtain $1500 worth of dangerous drugs from the 1st defendant. When they met, however, the 1st defendant demanded repayment of the previous loan. The applicant asked for indulgence. He said that at that time, the 1st defendant was not carrying anything in his hands. He said that when the police came, he did not run as the officers alleged. He was then questioned. It was later that the officers returned and arrested him because another officer had found the bag of dangerous drugs nearby. He denied having told the police that the dangerous drugs were not his and that they were given to him by the 1st applicant for safe keeping.

6. Counsel for the applicant relied on three main grounds of appeal.

7. The first complaint was that the trial judge in his summing-up suggested that from the evidence there were three versions as to what had happened. It was submitted that this was an inaccurate oversimplification which had obscured other possible versions which the jury might well on the evidence have legitimately considered. Counsel argued that this was compounded by the trial judge's misdirections and non-directions with regard to the statutory presumptions and the issues of possession, knowledge and trafficking.

8. With respect, we do not think there is any substance in this ground which can easily be disposed of. In his summing-up, the trial judge first of all dealt with the evidence of the prosecution witnesses who were police officers. He then went through the evidence of the 1st defendant and finally that of the applicant. It was after all this that the trial judge said :-

" ... So that is all the evidence.

From the evidence there are three versions as to what had happened. The first version is the version given by the prosecution witnesses. It was D1 who had physical control of the pink bag and he passed it to D2 who then had physical control of that bag, and they both dispersed when police arrived and D2 threw the bag away while running. So that is the first version by the prosecution.

The second version is that of D1's. He said he did not have the pink bag. It was D2 who gave it to him. He didn't know what it was but suspected that it was not something nice, so he gave it back to him and at that juncture police arrived. So that is the second version.

The third version came from the 2nd defendant. He said that he had never seen the pink bag nor did D1 give him the pink bag or any drugs.

So when you retire you have to consider all the evidence to see what evidence you should reject and what evidence you should accept."

When the trial judge referred to the "three versions", he was quite obviously pointing to the different sets of evidence which were presented to the jury and which he had just gone through in detail with them. We do not think from the way he dealt with the evidence that this can be regarded as an inaccurate oversimplification. The jury had been reminded of all the evidence. They could not possibly have been misled or confused in any way by the reference to the different "versions".

9. As to the second ground, Counsel for the applicant submitted that there was a misdirection and non-direction in the trial judge's summing-up on the issues of possession, knowledge and trafficking. It was argued that first, the trial judge had misread Section 47 of the Dangerous Drugs Ordinance regarding the presumption of possession and presumption of knowledge; secondly, he had failed to direct the jury on the effect of the presumptions, the onus on the applicant and the standard of proof required to rebut these presumptions; and thirdly, he had misled the jury into believing that physical possession together with knowledge of the nature, as distinct from knowledge of the presence, of the dangerous drugs was sufficient to convict the applicant.

10. That part of the trial judge's summing-up read as follows :-

" What is the meaning of trafficking? The law defines trafficking in a very wide way. It includes the importation or exportation of drugs to and from Hong Kong and it also includes procuring, supplying or otherwise dealing in or dealing with the dangerous drugs. Otherwise dealing in or dealing with a dangerous drug is different from the cases of possession for personal consumption; but personal consumption is not the case here. There is no such allegation, so we are only concerned with trafficking.

Possession is not ownership. You should not equate possession with ownership. Possession is custody or control. We are not concerned with who was the real owner. Possession, legally speaking, consists of the act of possessing coupled with the knowledge of the presence or the existence of a substance and the knowledge of the nature of that substance. After all, one cannot be said to be in possession of something if one does not know it is there. It does not have to be proved that a defendant knew the scientific name of the drug. All that is required is that he knew the nature of the drug.

Section 47 of the Dangerous Drugs Ordinance states: any person who is proved to have had in his physical possession anything containing or supporting a dangerous drug. And then the next two subsections are of no relevancy to our present case. Then it went on to say, 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.

The most common type of possession is actual physical possession which means effective physical control. This is the type of possession that we are talking about in this case because it is the prosecution's case that D1 had physical control of the pink bag and he passed it to D2 who then had physical control of that pink bag. So to succeed on the count of trafficking in a dangerous drug against the defendants, the prosecution must prove beyond reasonable doubt that the defendants were in possession of the dangerous drug in the sense that they had either custody or control of it and they were aware of the nature of the substance they carried. Further, the prosecution must prove that they trafficked in a dangerous drug in the sense I have just defined to you according to the Ordinance. When you convey the drugs from one place to another, unless the drugs were for own consumption, you must be dealing in or dealing with the drugs."

11. It seems that the trial judge started to read the first part of section 47(1) which relates to the presumption of possession of the drug, but did not finish it and instead continued to read out section 47(2) which relates to the presumption of knowledge of the nature of the drug.

12. We do not understand why the trial judge saw fit to read from these two sub-sections in the way he did. It may be that having started reading the first sub-section, he then took the view that it was only the second sub-section which was relevant to the case before him. We do not want to speculate as to what was in his mind or seek to explain on his behalf why he did that. Suffice it to say that this is a mistake which should not have been made.

13. It is correct that in the context of this type of cases, possession consists of the physical possession together with the knowledge of the presence of the substance. The presumptions that can be applied are :

"47. Presumption of possession and knowledge of dangerous drug

(1) Any person who is proved to have had in his physical possession -

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

(c) (repealed, 62 of 1994, s.6) shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) 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.

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug." (emphasis supplied)

14. Reliance can be placed upon s.47(1) where a person has "physical possession" of a container to establish that he has possession in law, i.e. both physical possession and knowledge. Section 47(2) has very limited application as it deals only with a presumption of knowledge of the "nature" of the drug. It is applicable only in cases where a person is shown to have a dangerous drug in his possession but contends that he thought it was a dangerous dug other than the one identified by the government chemist. In such cases, unless he proves the contrary, the presumption that he knew the nature of the drug stands. In the great majority of cases, the presumption in s.47(2) does not come into play as defendants normally contend that they did not know they had a dangerous drug at all. Much more common is the case where the defendant admits that he had possession of a container but states that he did not know that there was any dangerous drug therein (section 47(1)). In the present case, the presumption under s.47(2) had no application as the nature of the drugs was never in issue and the presumption under s.47(1) to which the judge made no mention was of no real importance as the conclusion of knowledge was a matter of common sense arising from the findings of fact at which the jury might have arrived and with which we shall deal later.

15. In the present case, the prosecution case is that the two defendants were handling the bag which contained the dangerous drugs. It is important to note that the applicant here had admitted that he went to meet the 1st defendant to obtain a supply of dangerous drugs for his own consumption. There was, therefore, at least as far as the applicant was concerned, an admitted anticipation that the 1st defendant would bring dangerous drugs to the scene. This is not a case where the drugs are found in a room or inside a car in which case the person having control of the room or the car may or may not know that the drugs are there. Nor is it a case where the defendant is saying that he did not know the kind, i.e. the nature, of the drugs in his possession. In the circumstances of this case, as in many other similar cases, we wonder whether it was even helpful to refer to these presumptions. We would respectfully echo the remark of Macdougall, V.P., in the R. v. Tam Chun Fai, Criminal Appeal No.663 of 1993, unreported at p.6 that "early consideration should be given to the repeal" of the presumptions in s.47 which are little more than inviting the jury to apply their common sense to the facts of the case.

16. However, once these statutory presumptions are invoked, a trial judge should give further directions as to the meaning of these presumptions and their consequences including the burden on the defendant and the standard of proof capable of rebutting such presumptions. It would be dangerous to omit these further directions unless it can be said that the jury are at the end of the day left with no doubt what the prosecution have to prove and that the burden always rests with the prosecution to prove them beyond reasonable doubt.

17. The trial judge, having referred to Section 47 in a piecemeal way, did not refer to or rely on these presumptions any more. He did, however, remind the jury that the prosecution must prove to the requisite standard possession in the sense that the defendants "had either custody or control of it and they were aware of the nature of the substance they carried" and that they had been trafficking in it.

18. Taking his summing-up on this aspect as a whole, despite the unnecessary reference to s.47(2), we are of the view that the jury could not have been confused as to what the prosecution had to prove and up to what standard. We do not think this is a valid ground of appeal.

19. We now turn to the third ground of appeal. Counsel for the applicant submitted that the defence of the 1st defendant at the trial was a "cut-throat" defence in that the 1st defendant had given evidence which had directly incriminated the applicant. He complained that the trial judge had failed to give any direction as to how the jury should approach such evidence. Counsel argued that "the least to be expected" of the judge was to give a direction to the jury to treat the 1st defendant's evidence with caution since he had a clear purpose to serve in testifying in such a way.

20. It is quite clear from the evidence that the 1st defendant said it was the applicant who gave him the bag but refused to tell him what it contained and so he returned it to the applicant. The clear implication was that the bag which contained the dangerous drugs was brought there by the applicant. On the other hand, while the applicant said that he did not see the 1st defendant holding anything in his hands, he did testify that he went there to meet the 1st defendant for the purpose of obtaining some dangerous drugs from him and that the police found a bag containing the drugs somewhere near the railings where the 1st defendant was standing. Although the applicant did not expressly say the dangerous drugs belonged to the 1st defendant, his evidence tended to incriminate the 1st defendant.

21. In the case of R. v. Knowlden [1983]77 Criminal Appeal Report 94 at 100, Watkins, L.J.said :-

"In exercising his discretion, he is at the least to be expected to give the customary clear warning to a jury where defendants have given damaging evidence against one another to examine the evidence of each with care because each has or may have an interest of his own to serve. Whether he should also advise the jury to look for corroboration of the evidence of a co-defendant and specify what evidence may or may not be corroboration will be decided by him, having regard to the nature and severity of the attack made by one co-defendant on another. The need for this advice should rarely arise in our experience since the simple customary warning will suffice to ensure that the jury regards the evidence in question with proper and adequate caution. The content of whatever kind of warning or advice is given is best formulated by the trial judge and, although invited to, we decline to introduce through this judgment a formula which trial judges should use no matter what circumstances confront them."

22. This passage was approved by this Court in R. v. Chan Tat Kwong [1991]1 HKLR 205.

12

23. Counsel for the Crown submitted that while this warning to the jury was desirable, it was not absolutely necessary since the jury would no doubt apply their common sense when dealing with the evidence of the two defendants who had tried to put the blame onto one another. Counsel relied on a comment made by my Lord, the Vice President, in the case of Chan Tat Kwong :-

" The trial judge was here doing no more than reminding the jury of a matter of the plainest common sense, which they would no doubt have had in mind anyway, that, when assessing the evidence of a person who has an interest in exculpating himself by inculpating another, his evidence should be examined with great care."

24. In a situation like the present case, where two or more co-defendants try to "cut each other's throat" by giving incriminating evidence against one another, it is an almost invariable practice that the jury should be given a clear warning to approach with great caution the oral evidence of each defendant. It is true that this is common sense, and the jury are of course expected to exercise their common sense. However, it is important that they have sufficient guidance in the form of directions and that this standard direction should not be overlooked. We think that it is the duty of a trial judge in a situation such as this at least to point out clearly to the jury that such incriminating evidence, although to be treated like any other evidence, comes from a co-defendant who is alleged to have taken part in the offence but who has denied any involvement in it and/or pointed an accusing finger at the other defendant. Having done that, the judge should go further to remind the jury to exercise great caution in approaching such evidence since the witness has obviously a purpose to serve. It is most desirable that he should give such a warning particularly where it appears likely that the jury may rely on the evidence of one or the other defendant.

25. In the present case, the trial judge had correctly reminded the jury that the cautioned statement made by the 1st defendant to the police could not be evidence against the applicant. However, not only was there no warning along the lines of the standard direction, there was a complete absence of any reference or direction to the jury as to how they should approach the 1st defendant's or the applicant's oral evidence. We think that such omission amounts to a material misdirection.

26. Counsel for the Crown urged upon us to apply the proviso in this case. The jury acquitted the 1st defendant by a majority but unanimously convicted the applicant. It is usually not easy to guess the basis on which the jury relied to acquit. In the present case, the 1st defendant admitted that he had passed on the bag containing the dangerous drugs to the applicant, but claimed that he was only returning it to the applicant without knowing what the substance was. His acquittal can only mean that the majority of the jury had either accepted his evidence that he was only returning the bag to the applicant or entertained a reasonable doubt as to whether what he said was true or not.

As to the applicant, the jury could not have convicted unless they were satisfied it was one of the three following possibilities : -

(i) that the bag never at any time left his possession. (It is unlikely that they would have arrived at that conclusion of fact as it was not supported by any evidence.)

(ii) that the bag was handed by him to the 1st defendant and then immediately returned to him. (This was the evidence of the 1st defendant.)

(iii) that the bag was handed to him by the 1st defendant never having been in his possession before. (This was the version of the applicant given in his cautioned statement but not, of course, in his evidence.)

As long as the jury were sure that one of the above possibilities applied, and we are satisfied that they must have been, then they were entitled to convict even though they were not sure which one it was. It seems clear that they could not have been sure that it was (iii) or they would have convicted the 1st defendant. However, if they thought it might have been (i) or (ii), they were entitled to be sure of possession as it was the applicant's bag brought by him to the scene. If they thought it might have been (iii), they were equally entitled to convict on the basis of his admission that he was there to receive drugs from the 1st defendant. From the foregoing it is clear that, if the jury were not sure which possibility applied, they had to acquit the 1st defendant, but, equally, whichever possibility applied, they were entitled to be sure that the applicant had been in possession of the dangerous drugs and was, therefore, guilty of the offence charged.

27. In these circumstances, we take the view that the verdict was a proper one and that the conviction of the applicant is neither unsafe nor unsatisfactory. We give leave to appeal. We treat the hearing of the application as the hearing of the appeal. We are satisfied that there was a material misdirection but are satisfied that there was no miscarriage of justice and the appeal is, therefore , dismissed.

28. With regard to the application for leave to appeal against sentence, Counsel for the applicant did not suggest that the sentence of 11½ years' imprisonment for the present offence was wrong or excessive. His complaint was that the trial judge had mistakenly believed that the applicant was serving only 9 months in connection with two other offences and hence, had ordered that the sentence to run consecutively to that 9 months' imprisonment. He pointed out that in fact the applicant was convicted of two counts of possession of dangerous drugs and was sentenced to 9 months' imprisonment on each count, both terms to run consecutively.

29. Counsel submitted that had the trial judge known correctly that it was a total of 18 months, he might not have passed 11½ years for the present offence or would have ordered that part of it was to be served concurrently. Reliance was placed on the case of R. v. Smith, [1981]3 Criminal Appeal Report 201 in which the court held that :-

" When a very long sentence was passed, no useful purpose is served by increasing the length of the total sentence to which the offender is subject by imposing a short consecutive sentence for a different offence or activating a suspended sentence consecutively."

30. Counsel suggested that the proper order should be that of 111/2 years plus a 9 months consecutive term or the two terms of 9 months should run concurrently with the 11½ years sentence.

31. It seems that the applicant's two terms of imprisonment of 9 months each were imposed in connection with drug offences which he had committed in the early part of 1994. The present offence which was committed in May 1994 was therefore committed during the period when he was on bail.

32. We believe that the magistrate who sentenced him in June 1994 must have a good reason for imposing the 2 consecutive 9 month terms. The present offence was quite separate from those two offences committed on some previous occasions. Any sentence which is to be imposed in connection with the present offence can properly be ordered to run consecutive to those terms. The question facing a judge when passing sentence in connection with the present offence is : how much consideration should be given to the fact that the applicant is serving an 18 month sentence such that he need not be imprisoned for an unduly long period of time. We think that the correct approach is first of all to decide on the appropriate sentence for the present offence and then to consider whether to order part of this sentence to be served concurrently with the sentences he is serving or alternatively to give a discount in the sentence to be imposed for the present offence and order all the sentences to run consecutively.

33. In the present case, we take the view that the 11½ years sentence is well within the usual tariff for the quantity of dangerous drugs involved. Further, in all the circumstances, it cannot be said that the total period of imprisonment is unduly long or that it is unduly harsh on the applicant if all the sentences are to run consecutively. The application for leave to appeal against sentence is also refused.