THE QUEEN v. LEE WAI KEUNG, DICKIE AND ANOTHER

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The two applicants stood trial before Barnes, J. and a jury on an indictment containing two counts.  The first count, which related to both applicants, was one of possession of a dangerous drug, namely 2,272.10 gms of a mixture containing 85.33 gms of salts of esters of morphine, for the purpose of unlawful trafficking. The second count, which was against the 2nd applicant alone, was also one of possession of a dangerous drug for the purpose of trafficking. It concerned 2134.06 gms of a mixture containing 79.18 gms of salts of esters of morphine.

2. The first applicant was found guilty on the first count and was sentenced to 10 years imprisonment. The 2nd applicant was found guilty on both counts and received concurrent sentences of 10 and 12 years respectively.

3. The unchallenged evidence for the prosecution was that the police raided premises occupied by the applicants and discovered the drugs referred to in the first count under a dressing table in the master bedroom. Both applicants were present at the time and each had possession of keys to the premises.  During the course of the same raid the 2nd applicant took the police to a car park where the drugs with which the 2nd count was concerned were found in the boot of a car owned by her and of which she had the keys.

4. The defence advanced by the applicants was that they were unaware of the presence of the drugs in the flat and the car.

5. They testified that were acquainted with a Mr. Lo who had at one time threatened the 2nd applicant and who, according to the 2nd applicant, had keys both to the premises and to her car. That this threat had been made was confirmed by a night watchman who was present in the flat with the applicants on the night of the police raid. He also testified that several nights before the raid Mr. Lo had arrived at the building and had made an enquiry as to the applicants whereabouts.  The watchman told him that they were in the United States. A day watchman testified that about two weeks before the raid Mr. Lo arrived with a carrier bag and, when told that the applicants were not at home, said that he had the keys and was taking something upstairs.

6. Early in his summing up the judge directed the jury that the burden of proving the guilt of the applicants rested on the prosecution and that it must be established beyond reasonable doubt.

7. He expanded upon that direction: "If the evidence leaves you in a state of reasonable doubt about a defendant's guilt, then your true verdict is "not guilty". It is only if the evidence convinces you so that you feel sure about guilt that your true verdict can be "guilty" '.

8. He then proceeded to direct them as to the meaning of possession and the presumption of possession that arises under section 47 of the Dangerous Drugs Ordinance (Cap. 134) when a person is proved to have had in his or her possession the keys of any premises or thing containing a dangerous drug. The relevant part of the section provides:

47(1) Any person who is proved to have had in his possession or custody or under his control -
(a)	anything whatsoever containing a dangerous drug;
(b)	the keys of anything whatsoever containing a dangerous drug;
(c)	any place or premises or the part of any place or premises in which a dangerous drug is found;
(d)	the keys of any place or premises or part of any place or premises in which a dangerous drug is found,
shall, until the contrary is proved, be presumed to have had such drug in his possession.
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(3) 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.

 

        Following this the judge said:

 

".... the law says: given proof of the finding of dangerous drugs, plus the proof of possession of keys to the premises in which those dangerous drugs are found - in simple terms, if dangerous drugs are found in Room B and person A has the keys to that Room B, then person A is, by law, presumed to be in possession of those dangerous drugs without any further proof whatsoever, and he remains proved to be in possession until such time as there is evidence which proves, on the balance of probabilities, that that person was not in possession.

 

        A is in possession of those drugs until such time as there is proof that A was not in possession, and that is what the presumption provisions under our Dangerous Drugs Ordinance mean, insofar as this case is concerned."

 

9. Having referred to the uncontradicted evidence of the finding of the drugs in the flat and the applicants' possession of the keys to it, he continued:

"You should, therefore, have no difficulty in being satisfied beyond a reasonable doubt that each did have possession of keys in circumstances giving rise to the presumption of possession.

 

So the only question remaining for you to decide, in determining whether a particular defendant is guilty or not in respect of this first charge, is whether it has been proved, on the balance of probabilities, that he or she, as the case may be, was not in possession. And on the way the case has been conducted before you, that really means: has it been proved, on the balance of  probabilities, that a particular defendant did not know that the drugs were on the premises.  Has it been proved, on the balance of probabilities, that a particular defendant did not know that the drugs were on the premises?

 

If you conclude that a defendant did not know, then you find that defendant 'not guilty'. If you do not accept the evidence that a defendant did not know, then you find that defendant 'guilty'.

 

In relation to the Second Count, the same observations apply. If you are satisfied beyond a reasonable doubt that the drugs listed in the Second Count were found in the boot of the car AG 288 and that the 2nd defendant had keys to that boot, then - unless the evidence satisfies you, on the balance of probabilities, that she did not know they were there - you must find her guilty. If the evidence does satisfy you, on the balance of probabilities, that she did not know that they were there, then you find her 'not guilty'."

 

10. The judge then summarised the evidence for the prosecution and the defence and went on to give this direction:

"Now, I have mentioned to you that if you are satisfied beyond a reasonable doubt that the police did find the drugs mentioned in the charges and in the flat, and if you are satisfied beyond a reasonable doubt that each had keys, and if you are satisfied beyond a reasonable doubt the drugs were found in the boot of the car to which the 2nd defendant had the key, then in each case you must find that possession has been proved, unless there is other evidence which satisfies you, on the balance of probabilities, that the particular defendant was not in possession.

 

Now, 'proof on the balance of probabilities', members of the jury, means proof by means of credible evidence. Nothing can be proved in a court of law other than by credible evidence. You cannot prove anything through a witness in a courtroom unless that witness is believed by a jury.

 

If the jury rejects the evidence of a witness, what that witness says is not proof of anything.

 

If you believe the 1st defendant when he says he did not know the drugs were on the premises, then you have proof, credible proof, because you believe him. You have proof that he was not in possession and he must be found not guilty.

 

If you do not believe him and you do not believe. the 2nd defendant that the drugs came to the premises without their knowledge, then you are in the position where you have been unable to find any credible evidence to prove the contrary and, in those circumstances, you must find that the 1st defendant was in possession of the drugs found under the dressing table.

 

Similarly, if you believe the evidence that the 2nd defendant did not know that the drugs were on the premises, in her case, there is proof that she was not in possession, then she must be found not guilty. Again, on the other hand, if you do not believe the evidence that she lacked knowledge of the existence of the drugs, then on the way this case has been conducted, you have not found the presumption rebutted and you must and will find that she was in possession."

 

Later the judge said this:

 

"Now, as I have put it to you, the crucial question in this case really is: do you believe either or both defendants when they tell you that they lacked knowledge of the existence of the drugs - knowledge of the existence of the drugs in the premises in relation to the 1st defendant; knowledge of the existence of the drugs in the premises in relation to the 2nd defendant, so far as the first charge is concerned, and knowledge of the existence of the drugs in the boot of the car on the part of the 2nd defendant, insofar as the second charge is concerned. This is the crucial question. As I mentioned earlier, your verdicts will depend really on how you answer that particular question. It is a jury question."

 

11. Mr. Plowman for the 1st applicant and Mr. Hoo for the 2nd applicant submitted that these directions were inadequate in that     the judge failed to direct the jury (1) as to the meaning of the expression "on the balance of probabilities" (2) that the burden of proof upon the applicants was significantly less onerous than that which lay on the prosecution and (3) that when considering whether the presumptions had been rebutted they should consider all of the evidence in the case, not just the evidence of the applicants.

12. Mr. Plowman also submitted that the judge misdirected the jury that they had to believe the applicant before they could find him not guilty whereas the proper direction should have been whether on all of the evidence the jury thought it more likely than not the applicant did not know the drugs were on the premises.

13. In support of their contentions they cited the following passage from the opinion of the Judicial Committee of the Privy Council delivered by Lord Ackner in Chan Ho-kuen and another v. The Queen [1990] 2 HKLR 345 at 350:

"The next step in his directions on the law was to explain to the jury that these presumptions only applied until, in the words of the Ordinance, 'the contrary is proved'. On the facts of this case all that this necessitated was to tell the jury:

 

(i)	that it was the obligation of the accused to prove the contrary.
(ii)	that whereas the prosecution had to prove their case beyond reasonable doubt, the accused only had to prove that their explanation as to how they came to be in possession of the drugs was more likely to be true than not and
(iii)	that if the jury were so satisfied, then the presumption that the appellants knew the nature of the drugs found in their possession would not apply.

 

To have so directed the jury would have been to follow in substance the time-honoured approach laid down by the Court of Appeal Criminal Division in R. v. Carr Briant [1943] 1 KB 607 where at page 612 Humphreys, J. said:

 

'... in any case where, either by statute or at common law, some matter is presumed against an accused person 'unless the contrary is proved' the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.'."

 

14. We should at once observe that there is nothing in that passage which indicates that there is a positive duty on a judge to give the jury a separate specific direction that in deciding whether an accused has rebutted a presumption they must consider all the evidence in the case, not just the evidence of the accused. We accept, however, that it would be wrong of him to tell the jury that they should confine their consideration in that regard to the testimony of the accused. But the judge gave no such direction. On the contrary, early in his summary up he said:

"In the course of this summing up, it will not be necessary for me to refer to all the evidence placed before you in order to outline for you the issues which you must resolve.

 

That does not mean that evidence not mentioned by me is to be ignored by you. There may well be parts of the evidence not mentioned by me which you regard as important in resolving the issues in this case.  That evidence must be considered by you, even though I have made no reference to it."

15. Plainly, whether or not the applicants had rebutted the presumptions was an issue in the case.   Nothing could be clearer than that the judge had directed the jury that they must consider all the evidence in resolving the issues before them. We are also of the view that the words used earlier by the judge "he remains proved to be in possession until such time as there is evidence which proves on the balance of probabilities that that person was not in possession" and a later passage "then in each case you must find that possession has been proved, unless there is other evidence which satisfies you, on the balance of probabilities, that the particular defendant was not in possession" sufficiently indicate that that evidence could come from any source and was not restricted to the testimony of the applicants.

16. Furthermore, the judge referred to the testimony of both watchmen. This evidence could only have relevance in the context of the applicants' assertion that they had no knowledge of the presence of the drugs. We find it inconceivable that the jury would have understood the judge's directions to mean that when determining whether a presumption had been rebutted they should only consider the testimony of the applicants.

17. With regard to the complaint that the judge failed to direct the jury as to the meaning of the expression 'on the balance of probabilities', Mr. Cross for the Crown placed reliance on the last sentence of the passage in Carr Briant to which the Privy Council gave its approval in Chan Ho-kuen:

"the jury should be directed .... that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called on to establish."

 

18. Mr. Cross very fairly included in his list of authorities the case of R. v. Swaysland, which was reported in The Times of April 15 1987, but does not appear to have been reported elsewhere.  Mr. Plowman, who readily acknowledged his indebtedness to Mr. Cross, cited this authority as providing direct support for the proposition he was advancing.

19. The very brief report of Swaysland in The Times states that in delivering the judgment of the Court of Appeal in England O'Connor L.J. 'said that it had been submitted that merely telling the jury that a defendant had to prove something on a balance of probabilities might confuse them into thinking that it had to be proved that it was, so to speak, 75 per cent on the cards, whereas the true burden was "more likely than not". The balance must be tipped by the defendant, but no more was necessary. Whereas as in this case, no explanation of "balance of probabilities" was given, although the direction could not be faulted as a matter of law there might be a doubt as to whether the jury had applied the standard of proof correctly.'

20. Some days after the conclusion of argument Mr. Cross received from the Criminal Appeals Office in London a full transcript, which he had requested before the hearing of this appeal, of the judgment in Swaysland. with the consent of all counsel we have now been provided with a copy of the judgment. A reading of it does not, however, support the interpretation which Mr. Plowman and the authors of Phipson on Evidence 14th edition at page 77 placed on the report in The Times. What O'Connor L.J. said was this:

"So it is said that where the burden is put on the defendant the trial judge should explain to the jury what is meant by a balance of probabilities if that phrase is used. In the present case the learned judge did not do so. It seems to the court that although the learned judge's direction cannot be faulted as a matter of law, the practice is such that where no explanation is given to a jury that a balance of probabilities means more likely than not or more probable than not, the court may find on the individual facts of an individual case that there is a doubt as to whether the jury has applied the standard of proof correctly."

 

21. That is far from saying that the judge must always give an explanation to the jury that a balance of probabilities means more likely than not or more probable  that not.

22. In this connexion we refer to what was said by Sir Alan Huggins V.-P. in delivering the judgment of this court in The Queen v. Law Chi-keung & others (unreported) Criminal Appeals 90 and 290 of 1983:

"We would be reluctant to hold that any particular form of words must be used to describe to a jury the degree of proof required to rebut a presumption and we say only that the phrase "established on a balance of probabilities" has withstood the test of time in the same way as "proof beyond all reasonable doubt". Both are brief and unambiguous and need no further explanation, and judges and magistrates would be well advised to use them."

 

23. Some two months later a differently constituted division of this court in The Queen v. Chan Siu-man &.others (unreported) Criminal Appeal 154 of 1983 had this to say:

"It is incumbent upon a trial judge in a matter of this kind to, first of all, direct the jury that throughout the case, presumptions or no presumptions, the burden and the standard of proof of proving their case beyond a reasonable doubt rests upon the prosecution; that, if the jury were satisfied so that they were sure that the primary facts giving rise to the presumption had been proved, the presumptions arose as a matter of law and that the onus then shifted to the defendant; that the burden and standard of proof upon the defendant was nothing like as high as that placed upon the prosecution and that it was discharged upon the balance of probabilities, or that which has become known as the more "likely than not", test. There was no direct reference by the trial judge to this at all." (our emphasis)

 

24. It appears that the courts attention was not drawn to Law Chi-keung as there is no reference to that case in the judgment. It is plain, however, that the words we have emphasised show that the court accepted that the use of the expression 'on the balance of probabilities' was unexceptionable.

25. Subsequently in The Queen v. Lam Ming-kwong (unreported) Criminal Appeal 104 of 1984 the adjuration of the court in Law Chi-keung was strongly endorsed.

26. We accept Mr. Cross' submission that although the Privy Council in Chan Ho-kuen stated that all that was necessary in this regard was for the judge to tell the jury 'that whereas the prosecution had to prove their case beyond reasonable doubt, the accused only had to prove that their explanation as to how they came into possession of the drugs was more likely to be true than not', it is apparent from their endorsement of the passage from Carr-Briant, that their Lordships were by no means prescribing a sacrosanct formula from which departure was impermissible. Less still were they disapproving of the use of the expression on the balance of probabilities'. It seems to us, however, that use of the expression 'more likely to be true than not' has the advantage of simplicity. No doubt it was that consideration that led the Privy Council to use that form of words. Indeed, it is our experience that it has long been the practice of judges in Hong Kong to use that formula when directing juries of the standard of proof required in discharging a presumption. We strongly encourage that practice.

27. It hardly needs stating that where a judge takes it upon himself to explain the meaning of proof on the balance of probabilities he must do so clearly and accurately. In our view the real issue in this appeal is whether the judge achieved that result. We have come to the conclusion that he did not. Instead of directing the jury that the expression meant that, in contrast with the burden cast on the prosecution, the accused only had to prove that their explanation that they were unaware of the presence of the drugs was more likely to be true than not, he told them that it meant proof by means of credible evidence through a witness and that nothing could be proved unless the witness was believed.

28. We are of the opinion that this explanation begged the question and was more misleading than enlightening.  It was likely to lead the jury to think that the standard of proof cast on the applicants was higher than that of proof on the balance of probabilities.  That being so, we have come to the conclusion that the convictions are unsafe and that the applications for leave to appeal against them must be granted.

29. There is one further ground of appeal which in the light of what we have just decided now becomes academic. Mr. Hoo submitted that in relation to the second count there was a break in the chain of evidence between the time when the dangerous drugs were found in the 2nd applicant's car by a detective police constable at about 1.15 a.m. and the time when he handed them over to a senior officer at 10.25 a.m. on the same day.

30. The constable testified that in the period which Mr. Hoo calls into question the drugs were in his safe custody. The contrary was not suggested to him in cross examination. Mr. Hoo sought to persuade us that there was evidence from which it might be inferred that there was a period of time during which the constable had let the drugs leave his custody. In our view, however, a possible inference to the contrary does not justify the rejection of the unchallenged evidence that the constable had the drugs in his safe custody.

31. If we understand him correctly, Mr. Hoo submitted that for the chain of evidence of custody of seized drugs to remain unbroken it is necessary for the officer or officers concerned to particularise how the drugs were in his or their custody during the relevant period. He cited The Queen v. Chan Kwai-nin (unreported) Criminal Appeal 325 of 1985 where this court said:

"The evidence produced in court was silent as to who was responsible for it during these nine hours, where and how it was kept, who had access to it, whether there was any possibility for some one to tamper with it, etc. There is therefore a major gap in the chain of evidence, accepted by Mr. Jackson (Crown Counsel), which renders the conviction unsafe and unsatisfactory."

 

32. That, however, was a case in which there was nothing to show what had happened to the suspected drug between the time of its seizure and the time it was handed over to the officer who finally became responsible for its custody. In the present case the officer concerned said that the drugs were in his custody. We do not consider that anything the court said in Chan Kwai-nin imposes an obligation on an officer who testifies that he had the seized drugs in his custody to give particulars in his evidence in chief of that custody or to negative any possibility that some one might have tampered with them.

33. This ground of appeal therefore fails.

34. For the reasons we have given the applicants' appeals are allowed, the convictions are quashed and the sentences set aside.