HKSAR v. CHAN CHUEN HO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 458
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was charged with two counts of trafficking in a dangerous drug. After a trial before Deputy Judge de Souza and a jury, he was convicted on the first count and acquitted on the second. He now seeks leave to appeal against his conviction.

2. The facts were very straightforward. In the early hours of the morning of 25th October 1996 a party of police officers were undertaking duties relating to dangerous drugs at Austin Road, Kowloon. One of the officers observed a man who it subsequently transpired was the Applicant emerge from 150A Austin Road. He approached the Applicant and told him that as he suspected that he was in possession of dangerous drugs, he proposed searching him. He did so. He found the dangerous drugs described in the first count in a bag. This was 197.17 grammes of a mixture containing 37.28 grammes of heroin hydrochloride. He also found keys and HK$12,970.00 on the Applicant and was told that the keys were the keys for a cubicle on the 3/F of the building he had come out of.

3. The officers then went up to the cubicle and conducted a search. They found a further quantity of what they suspected were dangerous drugs together with plastic bags, scissors and a set of scales. The Applicant declined to say anything about this.

4. The Applicant gave his evidence at his trial. He said that he had met an acquaintance after work by chance at Sai Yee Street. While talking to him four men rushed towards him telling him that they were police officers and that they suspected him of being in possession of dangerous drugs. After he had been searched he was informed that they had found some suspected dangerous drugs on him. He was then taken to the premises at Austin Road which he had told them that he had recently rented. He was kept in a police van while the police officers said they were conducting a search at the premises. After some time they told him that they had found some more dangerous drugs and some packets and scissors. He told them that this was impossible as he had not yet moved into the cubicle.

5. The Applicant also alleged that he had been assaulted on several occasions. He had made a report to the CAPO and had in due course made a complaint to a magistrate when he appeared before him. There was some medical evidence which may have been consistent with the complaint he was making.

6. It will be appreciated that the main issue for determination by the jury was the credibility of the police officers who gave evidence and whether the Applicant's evidence could be believed.

7. The 1st Ground of Appeal is:

"The learned Deputy Judge directed the jury as follows:

'Failure to rebut the presumptions will result in the accused's conviction as the prosecution will have proved beyond a reasonable doubt on the whole of the evidence adduced that he did have possession of the dangerous drugs, the subject matter of the two counts, and that his possession was for the purpose of trafficking in them.'

Such a direction was wrong in law since the presumptions referred to under S.47 Dangerous Drugs Ordinance, Cap. 134 related only to 'possession' and not to 'trafficking'. Accordingly, a failure to rebut such presumptions could not by itself in law result in a conviction for 'trafficking'."

8. This was particularly unfortunate. It is apparent from the transcript that the Judge's attention was drawn to this misdirection at the conclusion of the summing-up. Notwithstanding this nothing was done to rectify the situation. As has been pointed out by counsel, this was a misdirection on the law. What we need to do is to consider the consequence which flowed from this. As can be seen from the facts of the case, the issue which lay for determination was whether or not the police had planted dangerous drugs on the Applicant. There was never any question that the dangerous drugs had been in the Applicant's possession for his own consumption.

9. This being the case it did not make any difference whether the presumption referred to by the Judge referred to possession or possession for the purpose of trafficking. Although there was a misdirection this had no bearing on the outcome of the trial.

10. The only question which then arises is whether this is a situation where it would be proper to exercise the proviso.

11. In this connection it is necessary to consider the summing-up as a whole. On a number of occasions the Judge did differentiate between possession and trafficking and did spell out in some detail what had to be proved to establish trafficking.

12. In R. v. CHING Kwok-wing unreported being Criminal Appeal 4/1994, a differently constituted Court of Appeal held that where there had been such a misdirection the proviso should not be exercised. However each case must depend upon its own particular circumstances. In the present case no possible prejudice could have occurred as a consequence of misdirection and it is appropriate to exercise the proviso. It would have been inevitable if the jury had been properly directed that a conviction would have followed.

13. Ground 2 also deals with problems arising in connection with confusion which may possibly have arisen as a result of the jury gaining the impression that the activities of the Applicant may have amounted to trafficking. For the reasons already given no prejudice would have been suffered as a consequence of this. We allow this application. We treat it as the appeal and we exercise the proviso and dismiss the appeal.