R v. LAW WAI CHOI AND ANOTHER

IN THE COURT OF APPEAL

1996, No. 279
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The two applicants, Law and Leung, stood jointly charged on two counts, both of trafficking in a dangerous drug, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2. In the 1st count, it was alleged that on 26 January 1994, outside Flat G, 8th Floor, Dor Hei Building, Nos. 86-88, Ting On Street, Ngau Tau Kok, they unlawfully trafficked in a substantial quantity of dangerous drugs, namely over 8,000 grammes of a mixture containing over 7,000 grammes of salts of esters of morphine.

3. The second count was founded on the allegation that on the same day, in the same flat, they jointly trafficked in a dangerous drug, namely nearly 700 grammes of a mixture containing nearly 350 grammes of salts of esters of morphine.

4. The prosecution case was that these two applicants opened the iron grille gate and the wooden door of Flat C with keys. They entered the flat and emerged some 7-8 minutes later at 5.35 a.m. on the day in question. Applicant Law (the 1st applicant) was seen coming out of the flat holding a paper bag. He was followed by Applicant Leung (the 2nd applicant). When the 1st applicant was about to close the door, they were intercepted by the police. Upon revealing their identity, the police demanded to search a bag the 1st applicant was carrying. In the paper bag, the quantity of drugs in the 1st count was found and inside the flat the quantity in the 2nd count was retrieved by the police.

5. The flat was rented on behalf of one Chan for two years from 1 December 1993, who paid two months' rent in deposit and $5,000 rent in advance. Chan and his blood brother another Chan moved in but found the rent too much of a responsibility. He sub-let a part to another Chan (sub-tenant Chan) for $5,800 a month, making a profit of $800.

6. Suffice it to say that after their arrest and caution, the 1st applicant denied ownership of the contents of the bag in a statement which, so the defence contended, was an assertion of innocence. I accept that the statement could arguably be understood to be quite innocuous.

7. The 1st applicant elected to give evidence. Nothing was sought to be made of previously good character. According to him, sub-tenant Chan invited him to have a drink in a Tsim Sha Tsui bar. The 1st applicant took along the 2nd applicant. The 1st applicant allegedly asked a favour of sub-tenant Chan. He explained that his sister had quarrelled with her husband and that with her children she had come over to the 1st applicant's flat, staying in his bed-room. The 1st applicant enquired if sub-tenant Chan could let him spend the night at his home. Sub-tenant Chan gave the 1st applicant permission so to do. Both applicants continued to drink at that bar up to about 4 a.m. Thereupon, the 1st applicant bade goodbye to sub-tenant Chan who told the 1st applicant that he could use his car until he left for Mainland that day. According to the 1st applicant, sub-tenant Chan instructed him to go to his bed-room to fetch a bag of gifts for his car. Sub-tenant Chan gave both applicants his address and requested the 1st applicant to telephone him once the bag of gifts had been put in his car. The 1st applicant said that he found the bag of gifts, and he admitted he was caught with it by the police.

8. The 2nd applicant also gave evidence. He called his father as a character witness. He was a man of previously good character. He lived with his parents, a brother and a younger sister above the flat of the 1st applicant. The 2nd applicant testified that he had transported goods in his lorry for the 1st applicant. Amongst the articles so transported were white plastic bags with handles. He met the 1st applicant at about 8 p.m. on 25 January 1994 and went to the Tsim Sha Tsui bar with him. He did not overhear the conversation between the 1st applicant and sub-tenant Chan. They left the bar together and went into a car driven by the 1st applicant. He was under the impression that he was being taken home but the 1st applicant told him that they were going to fetch something from a friend's place in Ngau Tau Kok. From the 1st applicant, so he maintained, he understood the bag the 1st applicant was carrying was a bag of gifts. The 2nd applicant claimed that he had no knowledge of what was in the bag carried by the 1st applicant. Inside the flat, the police found the left ring fingerprint of 2nd applicant on one plastic bag and his right middle fingerprint on another plastic bag. These two plastic bags were found inside a cabinet in the bed-room together with a number of other similar bags. These two plastic bags were similar to those the 2nd applicant had transported in his lorry and they contained some packets of dangerous drugs.

9. Both applicants were found guilty on these two counts by the Jury after a summing up delivered by Saied, J. on 7 May 1996. They were convicted and sentenced. The applicants sought leave to appeal against their conviction and sentence. They were represented only in their applications for leave to appeal against conviction.

10. Possession of the quantities of dangerous drugs in question was the core issue in the two counts with which the applicants were jointly charged. In his summing-up, the judge did not address the jury on the statutory presumptions of possession and knowledge under s. 47 of the Dangerous Drugs Ordinance, Cap. 134. As it appears at p. 13 of the transcript of the judge's summing-up, this was said:

"You may think that possession of a package or packets, or a bag, is a strong inference of possession of its contents. But I must emphasize to you that the necessary criminal intention of possession would not be satisfied if it was shown that the defendant was genuinely mistaken as to its actual contents, and that of the illicit nature, and received them innocently, provided that he had had no opportunity since receiving the containers to acquaint himself with their contents."

(Emphasis added).

At p. 38 Q to p. 39 B, the judge further addressed the Jury as follows:

"Both defendants deny they knew what was in that bag and in that Flat G. I have already explained to you that knowledge is a prerequisite of possession. While it is true that where there is no direct evidence of knowledge, as for example, in a confession, it may be inferred from the surround circumstances, I am now directing you that knowledge might be inferred from evidence that the defendant wilfully shut his eyes to facts from which ordinary men would realise that what he had was a dangerous drug. But that inference is a process of reasoning based on circumstances of the case, and is not a presumption of law." (Emphases supplied)

11. A little later, at p. 40 T to p. 41 E of the transcript, the judge continued:

"It is a matter for you to consider the evidence carefully and decide on what the contents of the paper bag, in fact, were, whether the 1st defendant had opportunity of seeing what the contents, in fact, were. And also whether the 2nd defendant had the same and similar opportunity but they turned a blind eye to the facts from which ordinary men would realise that what they had was a dangerous drug."

12. It is trite law that an opportunity to inspect the contents of the paper bag in question was a factor from which the jury might, in the circumstances of the case, properly infer knowledge on the part of both applicants. But counsel for these applicants submitted that the possibility of these applicants deliberately shutting their eyes to the circumstances was advanced by the judge as an alternative to their actual knowledge of the presence of dangerous drugs in the paper bag. It was, so counsel contended, a misdirection for the obvious reason that even shutting their eyes to the gravest of suspicion could not, by itself, constitute direct evidence of knowledge; it was merely evidence to infer knowledge. If but for these challenged directions, the Jury might not have found these applicants to have knowledge of the contents of the bag, it would be equally unsafe to associate them with the presence of the dangerous drugs inside the flat. So analysed, their convictions in both counts could not stand.

13. In Leslie George Griffiths, (1974) 60 Cr App. R 14 at p. 18 James, L.J. had this to say:

"To direct the jury that the offence is committed if the defendant, suspecting that the goods were stolen, deliberately shut his eyes to the circumstances as an alternative to knowing ... the goods were stolen is a misdirection. To direct the jury that, in common sense and in law, they may find that the defendant knew .... the goods to be stolen because he deliberately closed his eyes to the circumstances is a perfectly proper direction." (Emphasis supplied)

14. Failure to avail oneself of the opportunity to inspect the contents of a bag one carries is no direct evidence of knowledge. It could not, therefore, be advanced as an alternative to proof of guilty knowledge. Evidently, from the availability of the same opportunity and neglect or failure to take advantage of it, an inference of guilty knowledge may be drawn, and with the other requisite ingredients, guilt of an accused may ultimately be inferred. The judge was wrong in directing the Jury that unless both defendants had had no opportunity to inspect the contents of the bag, they could not have succeeded in their claim to a mistaken belief as to its contents. He was inviting the Jury to treat any deliberate disregard, on the applicants' part, of the suspicious circumstances as an alternative to direct evidence of their knowledge of the contents of the bag. The Jury were not instructed in the same direction that it would be a matter of inference. Thus, the judge in effect withdrew from the Jury's deliberation the need to find or infer guilty knowledge of the applicants.

15. Possession of a bag is good evidence that the holder is in possession of its contents, but this may be rebutted by, inter alia, the absence of a reasonable opportunity of inspecting its actual contents. See R v. Warner [1969] 2 AC 256 at p. 305 H to p. 306 B. Also, when a man has had no reasonable opportunity of acquainting himself with the actual contents of the bag he carries, obviously no adverse inference of his knowledge of the contents may be properly drawn against him. But the converse is not always true, because even when a man has a reasonable opportunity to inspect the contents of a bag, it does not follow that knowledge of the contents must necessarily be inferred against him. Much would depend on the circumstances.

16. The subsequent passage in the judge's summing-up at p. 38 Q to p. 39 B set out earlier in this judgment dealt merely with instructions as to how, if need be, an inference may be drawn. It touched upon a wholly different stage in the mental process of a Jury's deliberation. In the last cited passage at p. 40 T to p. 41 E, opportunity to inspect was again offered as an alternative to these applicants actually knowing what the bag's contents were. These later passages clearly could not obliterate or remedy the defect of the judge's earlier direction given at p. 13 of the summing-up transcript.

17. That is sufficient to allow the applications and consequently the appeals of both applicants.

18. As to the 1st applicant, Mr Grounds further submitted that by his reference to the realisation of an ordinary man at p. 39B and p. 41S of the transcript of the summing-up, that is to say, ".... they turned a blind eye to the facts from which ordinary man would realise what they had was a dangerous drug:", the judge instructed the jury to apply the wrong objective test of knowledge whereas the test of knowledge for possession of dangerous drugs was subjective. In Atwab v. Massey (1971) 56 Cr App R 6, at p. 7, Lord Widgery C.J. said: "If when the justices say that the appellant ought to have known that the kettle was stolen they mean that any reasonable man would have realised that it was stolen, then that is not the right test. .... the question is a subjective one". See also Albert Robat Burns Grainge (1974) 59 Cr. App. R 3 at p. 6. I am persuaded by counsel's submission.

19. The Crown conceded that the judge failed to deal with the 1st applicant's propensity in directing the jury on the absence of evidence of his good character. The judge confined himself to the 1st applicant's credibility at p. 35Q - p 36D of the transcript in these terms:

"You will recall, however, that the 1st applicant did not give any such evidence [of his good character] and I am cautioning you to be extreme careful in not letting your imagination run wild and speculate on the reason why he did not do so. I am telling you in a very forthright manner that you will not take this against the 1st defendant in any way when considering his evidence and explanations, but will deal with his evidence, that of the 1st defendant, as he put it forth and on the basis of guidelines that I have given you."

20. Clearly, the judge only dealt with evidence and credibility without giving a warning on the 1st applicant's propensity. However, on this omission alone, I take the view that in the circumstances of this particular case, the convictions would not have been vitiated.

21. Mr Grounds also complained that the Judge did not adequately direct the Jury on the 1st applicant's statement to the police, viz. "Ah sir, that bag of white powder is not mine. Somebody asked me to come and get it." In the police caution, the officer warned the 1st applicant that he was being arrested for possession of dangerous drugs. Counsel contended that the judge over-emphasized the use of the term "white power" as against another equally common term "dangerous drug" and who first used the term "white powder". It was also complained that the judge did not sufficiently address the 1st applicant's statement insofar as it could be understood to be a denial of guilt. It was a conversation in a usual drug scene, and in my view the Hong Kong Jury could be safely left with this statement of the 1st applicant without further or an over-refined analysis.

22. Mr Tolliday-Wright adopted the submissions of Mr Grounds on the "possession" direction. The convictions of the 2nd applicant must also be quashed. Counsel seemed to have been content with the Judge's approach to proper cross-examination on fingerprints. Counsel did not seriously press for further cross-examination on cores and delta and sequence. Indeed, the 2nd applicant has no good cause for complaint.

23. I am not impressed by counsel's criticisms levelled at the integrity of the plastic bags exhibits and an outline of the 2nd applicant's explanation of the presence of his fingerprints on these plastic bags. The judge's direction was, in my view, sufficient. It was also open to the judge to draw the Jury's attention to the time during which the applicants stayed in the flat.

24. For the reasons I have given, I would treat the applications as the appeals proper and quash the convictions of both applicants.

Mortimer JA:

25. I agree that in each case the appeal must be allowed and the convictions quashed.

26. The central issue was whether the two applicants were in possession not only of the paper bag but also of the drugs it contained. The defence of each was innocent possession of the bag without knowledge that it contained drugs. Similarly both denied knowledge of the drugs in the flat. In the passage at p.13 of the summing-up the judge properly directed the jury on the prosecution case:

"You may think that possession of a package or packets, or a bag, is a strong inference of possession of its contents."

And then upon the defence case:

"But I must emphasise to you that the necessary criminal intention of possession would not be satisfied 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, ..."

However, he then effectively withdrew the defence from the jury when he said:

"... provided he had had no opportunity since receiving those containers to acquaint himself with their contents."

27. By this the judge elevated into a proposition of law what was no more than one of the circumstances to which the jury could pay heed in determining whether knowledge of the contents of the bag had been proved.

28. In the further passages cited by Liu JA the judge failed to rectify this error. He repeated it.

29. In these circumstances the jury might have concluded that an opportunity to acquaint themselves with the content of the containers was in itself sufficient to establish knowledge of the contents. This is wrong and may have had the effect of withdrawing from the jury each applicant's defence of innocent possession of the packet without knowledge of its contents.

Bokhary JA:

30. I also agree that these convictions must be quashed because the judge misdirected the jury by telling them that a mere opportunity to acquaint himself with the contents of the containers would fix the applicant with knowledge of their illicit nature even though he was genuinely mistaken as to the same. For that is the effect of the passage at p. 13 of the transcript of the summing-up quoted by my brother Liu.

31. The summing-up in the present case took place before this Court gave judgment in R v. Cheung Kwok Kuen, Criminal Appeal No. 51 of 1996, July 8, 1996. What emerges from that case is this. Constructive knowledge is sufficient in dangerous drugs cases. But such knowledge is rarely relevant. And its relevance is confined to rare cases such as one in which, for example, a man, despite his suspicions about what he was being asked to do, accepts a huge sum of money for making a relatively easy delivery of what happens to be dangerous drugs, but seeks to avoid the legal consequences simply by not asking any question for fear of the awkward answer he might get.

32. Whatever its imperfections, the law is not as helpless as that. In the example given, the accused would not be truly unaware that he was delivering dangerous drugs. He had simply avoided getting the confirmation which he neither wanted nor indeed needed. In common sense terms and in truth, he knew.

33. But the present case is not a case of that kind. The judge was postulating the case of a man who was "genuinely mistaken". And the man in the example would not be that.

34. In R v. Cheung Kwok Kuen (supra), an earlier error of the judge was corrected by a later direction. In the present case, the error was too stark; and the later direction relied on by the prosecution did not undo it.

[Retrial: Ordered]

Bokhary, J.A.:

35. We have considered all the rival arguments addressed to us for and against a retrial.

36. In our judgment, it is, all things considered, in the interests of justice to order that each applicant be retried for the offences of which he was convicted at the original trial and in respect of which his appeal has just been allowed. We so order. And we direct that a fresh indictment be preferred accordingly for a retrial in the High Court.

[Bail: refuse]

37. For the 2nd applicant, Mr Tolliday-Wright makes an application for bail. The application is opposed.

38. In our judgment, it is appropriate - and we so order - that each applicant be remanded in custody pending retrial.