HKSAR v. WONG WAI HUNG

CACC245/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 245 OF 2002

(ON APPEAL FROM HCCC NO. 21 OF 2002)

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J U D G M E N T

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

Introduction

1. On 14 May 2002, after a trial before Deputy High Court Judge Whaley and a jury, the applicant was convicted of an offence of trafficking (on 14 December 2001) in 5.59 kilogrammes of a mixture containing 4.32 kilogrammes of heroin hydrochloride.

2. On 15 May the applicant was sentenced to a term of 24 years and 6 months' imprisonment. He seeks leave to appeal against his conviction having stated in his initial ground of appeal that 'the judge [was] grossly unfair to me'.

The prosecution case

3. Among the facts admitted by agreement at trial were the following :

"(a) On the 14 October 2001, at around 10.00 a.m., the [applicant], was driving private motorcar KD 2905. He was arrested by the police outside No. 173 Kwai Yuen, Wing Lung Wai, Kam Tin, Yuen Long, New Territories, Hong Kong.

and

(b) The police seized the suspected dangerous drugs that they had discovered in a blue Nike bag, which had been placed in the boot of private motorcar KD2905. Those suspected dangerous drugs were then delivered to the Government Chemist. The Government Chemist, upon analysis, determined that the suspected dangerous drugs were in fact dangerous drugs, namely 5.59 kilogrammes of a mixture containing 4.32 kilogrammes of heroin hydrochloride."

4. The prosecution evidence was that, acting on information, the police conducted a surveillance operation on a goods vehicle (registration number EW 8059) which was suspected of being used in the smuggling of heroin from the Mainland to Hong Kong. From an observation post on a hill in or near Kam Tin two police officers observed the goods vehicle being parked at a parking lot at Tai Kong Po Village late in the evening of 13 October 2001.

5. The next morning on 14 October 2001, the police observed a person (who was not the applicant) sitting in the driver's seat of the goods vehicle. He was observed making a telephone call on a mobile phone and moving around inside. About a minute later a white car (registration number KD 2905) arrived at the parking lot and parked next to the goods vehicle. The person in the goods vehicle took out a bag from the passenger door of that vehicle and went to the rear of the white car. A taxi was then seen to arrive at the parking lot before leaving with its 'flag' up which led the police to believe that someone had been dropped off from the taxi. The white car then also left the parking lot. The person previously observed in the goods vehicle left the parking lot on a motorcycle. The police followed the white car and intercepted it. The applicant was the driver and sole occupant of the white car. The applicant put up a struggle but was subdued and handcuffed.

6. A search was conducted and 16 cylindrical blocks of heroin were found in a blue 'Nike' bag placed inside the boot. The applicant was arrested and cautioned. He said 'Ah Sir, I do not know it is this kind of stuff. I thought they were 'fing tau'. I did not know that it is white powder. I thought it was pills.' Later in a 'post record' under caution, the applicant confirmed that he had earlier said he did not know that the 'stuff' was white powder and that he thought it was 'fing tau' pills. He said that a man nicknamed Fa Chai told him to deliver the [stuff] to a person who would come to collect it and there would be a taxi (registered number 5681) waiting outside the Nam Yuen Seafood Restaurant at 1:30 p.m.

7. In evidence a police officer told the jury that he understood 'fing tau' pills to be 'psychotic drugs'.

The defence case

8. The applicant did not give evidence or call witnesses at his trial. It was the defence case (as put in cross-examination of the prosecution's witnesses) that the applicant did not know that there were dangerous drugs in the boot of the car and that all that he was doing was driving a car owned by one Fa Chai and returning that car and a document as instructed by Fa Chai to the Nam Yuen Restaurant and that the applicant had consistently denied any knowledge of the presence of the dangerous drugs in the vehicle while he was driving it.

9. It was also specifically part of the defence case, as put in cross-examination of the prosecution witnesses, that the applicant had never said anything to the police upon his arrest concerning 'fing tau' tablets. Both counsel for the prosecution and for the defence devoted a great deal of time, in their closing addresses to the jury, in dealing with this matter and that is relevant to the 2nd ground of appeal advanced before us.

The grounds of appeal

10. Mr McNamara who appeared before us on behalf of the applicant (but who was not counsel at trial) filed three perfected grounds of appeal as follows :

"1. The trial Judge misdirected the jury that the applicant's statement to the police amounted to an admission by the applicant that the applicant knew that he was carrying dangerous drugs in the boot of the car.

2. The Learned Judge failed to put the defence case to the jury.

and

3. The Learned Judge erred in directing the jury in relation to the presumption of possession under section 47 of Cap.134."

Mr McNamara submitted that in the premises the conviction of the applicant is unsafe and unsatisfactory.

The application

11. We can deal immediately with the 2nd ground of appeal in respect of which Mr McNamara complained that during the whole course of his summing-up to the jury the only reference to the defence case made by the trial judge was when he was reminding the jury of the evidence of one police officer (DPC 2983) and of some questions asked of him in cross-examination and of his replies to those questions.

12. His specific complaint was in these terms :

"The summing-up dealt extensively with the prosecution case and the learned judge failed to put the defence case to the jury. The defence was entitled to have its case put to the jury and it was incumbent upon the learned judge to put the defence case to the jury no matter how tenuous that defence might be. The learned judge had failed to do so."

13. The summing-up had dealt with the suggestions put to DPC 2983 in a way which more than adequately reminded the jury of the defence case albeit that the applicant had himself chosen not to give evidence. In essence the applicant's case was that he was merely returning a car owned by 'Fa Chai' (together with a document inside that car) to the owner. There was no substance in the point.

14. Mr McNamara's argument in respect of the first ground of appeal was that the trial judge fell into error when he directed the jury (at page 49P of his summing-up) in the following terms (with the emphasis provided by Mr McNamara) :

"You may think that it is in this connection that what the accused is alleged to have said to the police officers after the drugs had been found and after he had been arrested and cautioned is such important evidence in this case, a fact which has been emphasized by both counsel in their addresses to you. Why is it so important? You may think, members of the jury, that it is important because, if the defendant did say the things he is alleged by the police officers to have said, then you will have little difficulty in finding that he was admitting that he knew, before his car was intercepted by the police, that he was carrying these drugs in the boot of the car, that he was aware of their nature and that he did intend to exercise control over them by delivering them to somebody, a taxi driver who was waiting for him."

and later (at page 51C)

"To summarise what it was that the defendant is alleged to have said to the police officers, members of the jury, he is alleged to have said that he did not know it was white powder in the boot, he thought they were 'fing tau' pills which he was delivering at the request of one Fa Chai to a person who would come to collect them in a taxi. ..."

before the trial judge then proceeded to repeat to the jury his earlier direction that if the applicant had in fact said what the police alleged that he had said concerning 'fing tau' pills they would have little difficulty in concluding that he knew that there were dangerous drugs in the boot of the car.

15. Whilst Mr McNamara accepted that the trial judge followed up his direction (at page 49P) by telling the jury that if they were unsure whether the applicant did say what it was alleged that he said about 'fing tau' tablets then they must acquit the applicant he (Mr McNamara) submitted that such was irrelevant to the mischief in the initial direction which was in effect that if they accepted the prosecution evidence about what the applicant had said then it must follow that he (the applicant) was guilty of the offence of trafficking in heroin.

16. At page 62Q the trial judge directed the jury as follows (again with the emphasis provided by Mr McNamara) :

"Not necessarily heroin; it can be any dangerous drug as defined in the ordinance. But you would have to find, be sure, that even if you find he did make this statement to the police, that he did know that what he had in the boot of the car was a dangerous drug. As I say, not necessarily heroin, but that it was a dangerous drug, any dangerous drugs as defined in the ordinance."

17. It was these directions that were in error, argued Mr McNamara, because even if the jury found as a fact that the applicant did refer to 'fing tau' tablets that was not the end of the matter. They could only then proceed to convict the applicant of the offence of trafficking in heroin if they were further sure (and did not merely assume) that he knew that there were dangerous drugs as defined in the Ordinance (albeit a dangerous drug other than heroin) in the boot of the car, and there was simply no reliable evidence before them that 'fing tau' was a dangerous drug as so defined. All that they had been told, in evidence, was that 'fing tau' pills were believed by one police officer to mean some kind of 'psychotic' drugs.

18. As regard the evidence given by the police officer we would just make two points at this juncture. Firstly, in the course of his argument Mr McNamara suggested that it might have been inadmissible opinion evidence. As to that we note that the officer concerned was attached to the Narcotics Bureau of the police force which fact might well have given evidential weight to his opinion, or understanding, had the matter been pursued. Secondly we have had the benefit of listening, during the course of hearing this application, to the recording of this part of the officer's evidence and of its translation. Whilst the trial court interpreter translated what he said as 'psychotic drugs' we think that a more accurate translation, based upon what the interpreter told us in these proceedings, would have been 'hallucinatory drugs'.

19. Mr McNamara's complaint in respect of the 3rd ground of appeal was closely linked to the 1st ground. He submitted that :

"The learned judge should have told the jury that if they accepted what the applicant said to the police that he did not know that what was in the boot of the car was white powder or heroin but 'fing tau' pills and the prosecution had not proved that 'fing tau' pills were a dangerous drug as defined in the Ordinance then the presumption under Section 47(2) would be rebutted."

20. In his directions to the jury the trial judge said as follows :

"Now, what difference would it make in law, members of the jury, if you accept what he said to the police, that he did not know that these drugs were white powder, or heroin, he thought they were 'fing tau' pills? Well, the law in relation to dangerous drugs makes specific provision for this type of situation in the form of a presumption."

and, having read to the jury section 47(2) of the Ordinance, he said this :

"Please note that this section is expressed in mandatory terms; in other words, if the accused is proved or presumed to have had a dangerous drug in his possession, then unless the contrary is proved, the presumption does apply as a matter of law, namely, he is presumed as a matter of law to have known what the nature of the drug was, that it was a dangerous drug."

The learned judge went on to say :

"Note that the presumption only applies unless the contrary is proved. ..."

21. These grounds of appeal found their basis, at least in part, in comments made by counsel for the applicant at trial to the judge in the course of his summing-up.

22. What happened was this. The summing up commenced on 14 May 2002 and continued until the mid-morning break when the jury left the court. In the absence of the jury, counsel addressed the judge suggesting in terms that what he had told the jury was :

"unbalanced and amounting to an exercise ... in seeking to give judicial approval to parts of the evidence [which] ... are fully contested."

In particular what counsel complained about was that in the course of his summing-up the judge had read over to the jury in full the so-called 'post record' of what the prosecution alleged was an admission and upon which the prosecution heavily relied.

23. The trial judge saw nothing in that particular point complained about and, given what we have said about the closing addresses of counsel in paragraph 9 above, nor do we. However at 12:48 p.m. that day, just before he was to send the jury out to consider its verdict, the judge enquired of counsel, in the absence of the jury, if there were any matters that they wished to raise and there followed this somewhat lengthy exchange :

"MR ODERBERG: My Lord, it's not in the nature of the previous observations I've made. I would ask your
	Lordship, in terms of section 47(2), to give a further direction in respect of how that operates. ... Section 47(2), as your Lordship has read it quite correctly, creates the presumption as to knowledge, and it says that [if a defendant] is proved or presumed to have had a dangerous drug in his possession he shall, until the contrary is proved, be presumed to have known the nature of such drug.
	I don't take any exception with the way in which your Lordship has approached it, save to say that in my submission, it is necessary to tell the jury a little more than your Lordship has about 'the contrary is proved'. ...
	The burden to rebut is on the balance of probabilities only, and I accept that, but I would ask your Lordship to give the direction in precisely the words that are referred to by Wong JA in the authority that was handed to you yesterday, which is Chan Ming Fai. It's a very recent case, 2001. If I can take you to page 515 of that judgment. ... It says : ...
	Now, there are two possibilities in this case. One is that [the jury] will reject the alleged statement made by the accused as recorded in the post-recorded document, in which case, as I think your Lordship has indicated to them fairly, they would almost certainly acquit because they can't be satisfied of knowledge of possession.
	However, it is submitted that even if they were to find that the statement that was alleged to have been made was made, all that they have been told is that he thought it was 'fing tau' tablets, which I presume they will know means 'head bang', and the only evidence they have beyond that is that one of the officers said he believed 'fing tau' was a psychotic, or psychotropic ...
COURT: Psychotic.
MR ODERBERG : Was a psychotic drug, which of course means nothing in any event, 'psychotic' is not -
	maybe he meant 'psychotropic', but in any event. But the difficulty is this, that on the dictum of Wong JA [in Chan Ming Fai] - and in my submission it's really unarguable - they have to nonetheless be satisfied that what was in the boot, what he believed was in the boot, was in the nature - and I use the judge's words - in the nature of a dangerous drug.
	Now, your Lordship earlier referred to dangerous drugs, quite rightly, and you used, I think, a number of examples, none of which of course were 'fing tau' or psychotic or whatever. You referred to a number of different types of dangerous drug which is clearly taken from the First Schedule, Part I of the Dangerous Drugs Ordinance, which means that - and for this, all purposes, those words 'dangerous drugs', for any prosecution under the ordinance, are a term of art, that's exactly what they mean. That is, drugs that come under Part I of the schedule.
	There is no evidence at all that 'fing tau' is a dangerous drug, even on the ordinary meaning - not that that's applicable - but there's certainly no evidence that it comes under Part I of the schedule. There is no evidence that it comes within any listing of dangerous drug for any purpose.
	And if my learned friend was to say, well, you know, everybody knows what it is, that simply, of course, is unacceptable. It's like saying everybody knows what a dangerous drug is under the ordinance. They can't possibly ...
	Now, what is important is my learned friend could have proven what 'fing tau' was. The interesting thing is he was obviously alert to it because he actually asked a witness, 'Do you know what 'fing tau' is?' I expected that when - I expected, first of all, the officer to say, 'Yes, it's actually a drug known as' whatever 'and it's commonly constituted by this chemical,' and my learned friend would then say it comes under the schedule or whatever.
	Now, my learned friend teetered on the step of doing that, and I presume, as a decision, withdrew from it. He could have called, with leave, an expert to say 'fing tau' tablet is a common phrase for this drug known as whatever and it consists of this chemical which is a dangerous drug for the purposes of the Dangerous Drugs Ordinance. My friend has not sought to do that, but having been alive to it made a decision, presumably, not to prove that fact.
	So what I'm putting to your Lordship is this. Even if they find that the statement was made, they would have to be satisfied that in saying he believed they were 'fing tau' tablets, that he was there admitting, ... that he knew that what was ..., inside the bag in the boot of the car was a dangerous drug. This would have avoided the confusion and misunderstanding.
	The prosecution simply hasn't done it. It can't be an oversight because my learned friend was alive to proving what 'fing tau' was and he never proved it was a dangerous drug. He hasn't even proven that it's a listed drug. He hasn't actually proven that it's a Part I poison. He hasn't even proved it's a controlled substance.
	And might I remind your Lordship, in case your Lordship is tempted to say, well, you know, everybody knows that 'fing tau' is an illegal drug, may I remind you that ketamine, which I think is now under Part I, was not a dangerous drug until, I think, only about six months ago. It was previously a controlled substance or a Part I poison and now is a dangerous drug.
	Now, if this had been a ketamine case, if the defendant had said, a year ago, had said, 'I didn't know it was heroin, I thought this was ketamine,' my learned friend could not possibly be heard to say, well, the jury knows what ketamine is, because they would be wrong if they concluded that ketamine was a dangerous drug because it wasn't, it was a Part I poison.

[We just interpose here to say that in fact ketamine was scheduled as a dangerous drug in December 2000, more than 9 months prior to the date of the alleged commission of this offence]

COURT: Can I try to get completely clear what you're suggesting. Is this all you're suggesting, that I add that
	even if they find, on considering all the evidence, that the defendant did make the statements attributed to him by the police, that before they can convict the defendant, they must still find, be sure, that he believed that the 'fing tau', which according to his statements he knew he had in the boot, was a dangerous drug?
MR ODERBERG: Yes. And in my submission, they can't. And if your Lordship thinks I'm leaning in a
	particular direction, yes, that's exactly what I'm doing. I'm submitting that if I'm correct in law, there should now be a directed verdict of not guilty in this case.
	The prosecution has invited the jury to rely upon this crucial evidence; that is, 'I thought it was 'fing tau''. They can't succeed without that statement being in, therefore they're inviting the jury to find that that statement was not only made but was true - voluntariness doesn't come into it, but it was made and it was true.
	I'm submitting that, on the authorities, and in particular, because this is probably the clearest statement of all, on this decision of Chan Ming Fai, that they - if they are asking the jury to rely upon that statement, they have still not established the requisite knowledge both of possession and that it was a dangerous drug for the purpose of the presumption.
	In other words, the jury can only do one of two things. They can go back into the room and say, 'We don't believe,' or 'We have a doubt as to whether he made those statements; we acquit'. Or they could say, 'Well, we think he made those statements, and we accept that statement, but we think he did not know it was heroin, he believed it was something called 'fing tau' tablets, or 'fing tau' pills'.
	I'm submitting that they would - if they reached that conclusion, you would have to direct them that, in those circumstances, the presumption had been rebutted, because there's no evidence of it being a dangerous drug. And if you look at the presumption, clearly, the presumption permits - I think it's beyond argument - permits it to be rebutted from within the prosecution's case.
COURT: Yes, yes, no doubt about that. What are you saying would constitute proof of the contrary?
MR ODERBERG: The evidence that the accused, at the time, said to the police - and remember, they're
	inviting the jury to find it's true that he said this statement - that 'I thought they were 'fing tau' tablets' or 'pills'.
COURT: But are you saying that that constitutes proof, on a balance of probabilities, that he did not know ...
MR ODERBERG: That he did not know it was a dangerous drug.
COURT: ... that it was a dangerous drug?
MR ODERBERG: Yes.
COURT : I don't think that follows, does it, Mr Oderberg?
MR ODERBERG: Well, I've put the submission. In my submission, it was for the prosecution to establish that,
	even on his own statement, it was a dangerous drug, and they've not done so. The jury is actually going to be left saying, well, 'Okay, we accept that he said it was 'fing tau', we accept it was true, we accept that he said it. Where does that leave us as to whether or not that is a dangerous drug?'
	What's the jury then going to do? Is it then going to say, 'Well, we don't actually know what 'fing tau' is but, whatever is it, we're going to find it was a dangerous drug'? Or are they going to say, 'We don't know what it is and therefore we're going to find that the presumption hasn't been rebutted'?
	This could have been very easily solved by the prosecution saying 'fing tau' tablets are a dangerous drug, and you could have then said to the jury, 'Look, even if you believe what he says - if you believe what he says, he has not in fact rebutted that presumption'.
COURT: Yes, it may be it could have been easily dealt with, but we've got to decide the best way to deal with
	this situation.
MR ODERBERG: Well, that's a matter for your Lordship to decide.
COURT: Yes.
MR ODERBERG: In my submission, there's been a fatal flaw in this case in the way it's been presented by the
	prosecution in reliance upon this statement without any attempt to prove whether or not 'fing tau' tablet, as it's commonly known, is a dangerous drug, or even a prohibited substance, let alone a controlled substance. That's my submission.
COURT: Yes, thank you. Well, Mr Donald.
MR DONALD: My Lord, I think the prosecution's case - it has proved its case. I think on the evidence that's
	before them now, that they can find that 'fing tau' is a dangerous drug. I mean, it's quite - I mean it's just like saying white powder - you've got to prove white powder is heroin. Everybody knows what 'fing tau' is. And as the policeman said, it's a psychotic head-nodding drug.
	I think the jury can, on the evidence before them now, have no difficulty in determining it is a dangerous drug. It doesn't have to be heroin, as you know, and I think you could point that out to them, my Lord, that even though it doesn't have to be - it doesn't have to be heroin, it just has to be any sort of dangerous drug. I would ask you to mention that in your summing-up, but I'm more than happy with the way that you've given direction already.
MR ODERBERG: If your Lordship is against me as a matter of law on that submission, I don't ask for any
	redirection.
COURT: Yes. Well, I don't believe that a direction to discharge the accused is called for, Mr Oderberg. I do
	find against you on that. What I propose to do is simply give the addition that you first of all suggested, to make it clear, try to clarify, that even if they accept that he made the statement, that they must still find, before they can convict the defendant, that he believed that what he was carrying in the boot, which he described as 'fing tau', was a dangerous drug.
MR ODERBERG: Thank you. Yes, thank you very much.
COURT: Yes, very well.
MR DONALD: My Lord, dangerous drug, could you add, not necessarily heroin, just a dangerous drug.
COURT: Yes, yes. Yes, call the jury back please.
JURY RETURNS - 1.05 pm"

24. Inter alia what the judge then said to the jury [at page 62K] was this :

" What I want to make clear to you, I perhaps did not make it entirely clear before, is that even if, on considering all the evidence, you concluded that you were satisfied, so that you are sure, that the defendant did make the statements to the police officers that he is alleged to have made, you would still have to find, before you could convict the defendant of the charge, that he knew that what he had in the boot, which he told the police he believed was 'fing tau', that he knew that it was a dangerous drug.

Not necessarily heroin; it can be any dangerous drug as defined in the ordinance. But you would have to find, be sure, that even if you find he did make these statements to the police, that he did know that what he had in the boot of the car was a dangerous drug. As I say, not necessarily heroin, but that it was a dangerous drug, and a dangerous drug as defined in the ordinance." [Our underlining.]

25. Plainly if there is substance in the complaint made by trial counsel and repeated before us by Mr McNamara in the 1st and 3rd grounds of appeal, then the additional remarks made by the judge to the jury arguably did not resolve the issue because whilst the judge had told the jury that the list of dangerous drugs in the schedule to the Ordinance was a long list which included heroin, opium, ice, cocaine, ecstasy, ketamine and marihuana or cannabis, there was no evidence at all that 'fing tau' was included in that schedule and nor did the judge direct the jury that it was.

26. Mr Zervos, SC who appeared before us with Ms Ho, dealt succinctly in his written submission with the particular issue that caused us concern. Helpfully he drew to our attention a number of legal principles including the following :

"(a) The main issue in this case was whether the bag was in the Applicant's physical possession. If the jury were satisfied that it was, they then had to decide if the Applicant knew the bag contained drugs. As it was not disputed that the bag did contain drugs, the presumption in section 47 meant that the Appellant had to prove on the balance of probabilities that he did not know that the bag contained drugs: HKSAR v Chan Ming Fai [2001] 4 HKC 511 per Keith J at p516B-F.

(b) Whether or not [the applicant] knew the drug by the name of ecstasy or by some other term, was irrelevant, so long as the jury was satisfied [he] had knowledge that [he] possessed something in the nature of dangerous drugs. The necessary criminal intention of possession was not satisfied if it was shown that a defendant was genuinely mistaken as to its actual contents and its illicit nature and received them innocently (R v Law Wai Choi & Anor [1997] HKLRD 555 applied): HKSAR v Chui Chi Wai & Anor [1999] 3 HKLRD 841 per Stuart-Moore VP at pp845C-D and 846E-F and L."

27. Mr Zervos also made reference to circumstances in which the doctrine of 'judicial notice' can be utilised (for example notice of the general understanding that 'white powder' can in certain circumstances be a specific reference to the drug heroin) but we are quite satisfied that in this case such cannot be applied.

28. Quite apart from any other consideration, in relation to the that doctrine we think it helpful in the context of this application to note the words of Lord Widgery CJ in Wetherall v. Harrison [1976] QB 773 at 778A :

"So I start with the proposition that it is not improper for a justice who has a special knowledge of the circumstances forming the background to a particular case to draw on that special knowledge in interpretation of the evidence which he has heard. I stress that last sentence, because it would be quite wrong if the justice went on, as it were, to give evidence to himself in contradiction of that which has been heard in court. He is not there to give evidence to himself, still more he is not there to give evidence to other justices; but that he can employ his basic knowledge in considering, weighing up and assessing the evidence given before the court is I think beyond doubt."

29. Whether or not this application should succeed depends on the answers to two questions namely ;

(a) What is meant by the phrase in section 47(2) of the Ordinance "presumed to have known the nature of [the] drug"? and

(b) Was the applicant's admission that he was in possession of 'fing tau' pills sufficient evidence for the jury to find that the applicant knew the nature of the drug?

30. In the judgment of the Court of Appeal in England in the case of James McNamara [1988] 87 Cr. App. R.246 the Lord Chief Justice of England said the following (at pages 250 and 251) in seeking to extract the ratio decidendi of the judgment of the House of Lords in Warner v. Metropolitan Police Commissioner [1968] 5 Cr. App. R.373 :

" First of all a man does not have possession of something which has been put into his pocket or into his house without his knowledge; in other words something which is 'planted' on him, to use the current vulgarism. Secondly, a mere mistake as to the quality of a thing under the defendant's control is not enough to prevent him being in possession, for instance, if a man is in possession of heroin, believing it to be cannabis or believing it perhaps to be aspirin. Thirdly, if the defendant believes that the thing is of a wholly different nature from that which in fact it is, then the result, to use the words of Lord Pearce, would be otherwise. Fourthly, in the case of a container or a box, the defendant's possession of the box leads to the strong inference that he is in possession of the contents or whatsoever is inside the box. But if the contents are quite different in kind from what he believed, he is not in possession of it."

31. As we have indicated earlier in this judgment we have some difficulty in saying that a tablet of aspirin is of the same general nature as a tablet of heroin, and we are reinforced in that view by that part of the judgment of this court in HKSAR v. Chui Chi Wai & Another [1999] 3 HKLRD where it was said (at page 846 E-G) as follows :

"Whether or not D1 and D2 knew the name of ecstasy or MDMA, or knew the drug by some other term, was beside the point so long as the jury was satisfied the defendants had knowledge that they possessed something in the nature of dangerous drugs.

The judge was in error to have directed the jury, as he appears to have done, that the defendants were guilty 'even if (they) believed them to be sweets' or, in his earlier illustration, 'aspirin'."

32. Section 47(2) of the Ordinance reads as follows :

"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."

33. The applicant could not have been convicted by the jury unless they were sure that the applicant had said the words attributed to him by the police at the time of his arrest. Indeed it was made quite clear to the jury that it was not open to them to convict unless they were sure that the applicant had indeed answered a police question precisely in the manner recorded in the notebook of DPC 2983. What the judge said was this :

" Now, if, after considering all of the evidence, you were not sure that he did say those things to the police officers, then you cannot take them into account, members of the jury, you must ignore what the defendant is alleged to have said to the police officers. You can only take them into account if, after considering all the evidence, you are satisfied so that you are sure that he did say them and he said them in the circumstances testified to by the police officers.

If you are left unsure, with any reasonable doubt, as to whether he did make those statements, whether he did say those things to the police officers as testified by the police officers, then, as I say, you cannot take them into account, you must ignore them. In that event, you would then be left with the evidence that when his car, the car that he was driving, was stopped, these dangerous drugs, the heroin, was found in the boot, but once you ignore what he is alleged to have said to the police, you would have no evidence before you to indicate that he knew that these drugs were in the boot, that he was aware of their nature or that he intended to exercise control over them.

In other words, you would have no basis upon which you could properly find that the defendant was in possession of those goods and therefore no basis on which you could properly find that he was trafficking in them. In that situation, it would be your duty to acquit the defendant; in other words, find him not guilty of the charge."

34. The only presumption upon which the judge directed the jury related therefore to section 47(2) of the Ordinance. It must follow from the conviction of the applicant that the jury was satisfied that he was in possession of a quantity of drugs. They then had to be sure, given the applicant's verbal response to the police about transporting 'fing tau', that he knew the nature of those drugs.

35. The 'nature' of those drugs, in proper context, must be intended to mean that the applicant was aware that he was in possession of something in the nature of a dangerous drug, albeit that his knowledge of which particular dangerous drug he was transporting in the boot of the car he was driving was immaterial. The question to be decided by the jury was whether he could be presumed to know the nature of the dangerous drug whatever name he might have been attributed to it.

36. In essence the principal complaint in this application was that the judge had equated 'fing tau' with a dangerous drug by telling the jury :

"... if the defendant did say the things he is alleged by the police officers to have said, then you will have little difficulty in finding that he was admitting that he knew, before his car was intercepted by the police, that he was carrying these drugs in the boot of the car, that he was aware of their nature and that he did intend to exercise control over them ..."

37. It was, of course, a matter for the jury to decide whether, in all of the circumstances, the applicant was aware of the nature of the drugs. Although the judge had not otherwise directed them, the way in which the jury was told that they would have little difficulty in coming to that conclusion, could have led the jury to believe that 'fing tau' was necessarily of the same nature as a scheduled dangerous drug.

38. In the circumstances, the failure to give a specific direction to the jury amounted to a material irregularity in the course of the trial.

39. Notwithstanding this we have turned our attention to section 83(1) of the Criminal Procedure Ordinance (Chapter 221) in considering whether any miscarriage of justice actually occurred.

40. Mr McNamara, perhaps unsurprisingly, was adamant that in all of the circumstances this is not a case for the application of the proviso in that section. Mr Zervos, on the other hand, pointed to all of the circumstances leading to and during the course of the arrest of the applicant. Regardless of whether or not the expression 'fing tau' relates in common parlance to the dangerous drug 'ecstasy' Mr Zervos argued that 'head shaking' tablets or pills if that is how the applicant described the substance to the police could not mean anything other than an hallucinatory drug and that when the applicant used that term he plainly showed that he was in possession of what he knew was in the nature of a dangerous drug.

41. In our judgment, and as we have said, given that it was made quite clear by the judge to the jury that they must acquit the applicant if they were not sure that he said the words attributed to him by the police, it is apparent that they were sure that he did, and that in his reference to 'fing tau' pills he was referring to an hallucinatory drug. And, it must follow, that being sure about that, the jury found (and was fully entitled to find) that the applicant was in possession of, and was trafficking in dangerous drugs. In almost the final direction the jury were given (in a passage to which we have already referred in paragraph 24 above) the judge told them that even if they accepted that the applicant had made the statements attributed to him they would still have to find that he knew what was in the boot of the car, and that it was a dangerous drug.

42. Accordingly we are satisfied that there was no miscarriage of justice in the conviction of the applicant against which he appeals and we invoke section 83(1) of the Criminal Procedure Ordinance.

Conclusion

43. We shall grant leave, but treating the hearing as the appeal we dismiss the appeal having applied the proviso.

44. One final matter to which we make reference concerns the sentence imposed upon the applicant against which sentence he has not appealed. What we say must be prefaced by a statement of the fact that we have not seen a transcript of the mitigation advanced by counsel on behalf of the applicant at trial. Nor have we seen a transcript of the judge's remarks at the time of sentence. That being so the applicant's hopes should not be raised.

45. However, subject to what those transcripts may reveal, we would invite the applicant to consider making a late application regarding his sentence if he is concerned that he was sentenced for trafficking in heroin when, as far as he was aware, the nature of the drug was more akin to 'ecstasy'.