R. v. TUNDE ODIZOR OLUSOJI

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J U D G M E N T

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Hon, Yang, C.J.:

1. This was an application for leave to appeal against conviction and, if necessary, sentence. The applicant was given leave at the start of the hearing to abandon his application in respect of sentence.

2. At the conclusion of the hearing we dismissed the appeal against conviction and stated we would hand down our reasons later. These are those reasons.

3. On 8th February 1991, the applicant was convicted after trial on two counts of possession of a dangerous drugs for the purpose of unlawful trafficking. He was sentenced to 12 years imprisonment on the 1st count and 2 years imprisonment on the 2nd count, the two sentences to run concurrently.

4. The case for the Crown was that on the morning on 25th May 1990, a party of customs officers went to Chunking Mansions in Nathan Road, Kowloon, and waited at the Dragon Capital Guest House, Room 1714. When two Nigerians, Patrick Nwagwu and the applicant arrived, they sought and were given permission to enter the room, which was "Patrick's" room, for a search. They found nothing. They asked the applicant who he was and then went with him to his room at No. 6 Toms Guest House in the same building. The applicant told them he was staying there.

5. A search was conducted in the applicant's room. A pink Polythene bag containing drugs was found in the water cistern in the toilet, and a pellet was found wrapped in yellow tissue paper on the dressing table. Upon being questioned, he said he did not know what was in the bag. He was then cautioned and arrested.

6. The gist of the applicant's evidence at trial was that he did not know there was the pink polythene bag or any other dangerous drug in his room. When the bag was found he at once realized he had seen it previously in "Patrick's" hands at a time when Patrick had visited him in his room and when he, the applicant, had left it, with Patrick remaining there, for a short while to get food. The applicant had accepted that he knew Patrick had something, he knew not what, which he did not wish to be found. The applicant was on a legitimate business visit to Hong Kong.

7. It is not suggested that the judge failed to put the prosecution evidence or that of the defence clearly to the jury.

8. When the summing up had concluded the jury presented written questions, five in number, to the judge. It is the fourth of those questions and the answers given by the judge that has given rise to the arguments advanced in this appeal.

9. The question was:

"(4) Are we to ascertain that the defendant was in possession of the parcel or are we also to ascertain that the defendant was aware of the content of the parcel?"

10. The answer they received was:

"Now, you ask, 'Are we to ascertain that the defendant was in possession of the parcel or are we to ascertain also that the defendant was aware of the content of the parcel.' I think I told you that if you find beyond a reasonable doubt that the defendant had the key to the room and that the drugs were in the room, then you must presume, infer, that the defendant was in possession of the drugs, unless he can establish, on the balance of probabilities, that he was not. And when I say you must infer that he was in possession of the drugs, that includes that he knew that the drugs were there. Then I went on to say that if you find that proved, that he knew the drugs were there, he was in possession of the drugs, then he is presumed to know what the nature of the drug is unless he satisfies you, on the balance of probabilities, that he is not. And as I think I said to you, there is no issue taken in this case about that. So if you find he was in possession of the drugs, you will also find that he understood and knew the nature of the drugs. (Emphasis supplied)

No point was taken at the time but it is now Mr. Mullick's contention that the trial judge, by virtue of that which he said, did, in the circumstances of this case, withdraw from the jury the issue of knowledge. He stresses the emphasised phrase which appears in the middle of the redirection set out above which he submits must have misled the jury into believing that no issue as to the applicant's knowledge lay for their consideration.

11. In earlier portions of the summing up the judge had clearly and concisely directed the jury on the meaning of possession. At page 7 he said:

"Possession, be it physical or constructive, must be accompanied by a knowledge or realisation that the thing is in the possession. That is nothing more than common sense, of course. Possession of anything to be legal possession must be accompanied by a knowledge or realisation that the thing is in the person's possession, physical or constructive."

12. At page 8 he said:

"I repeat that. If you are satisfied beyond a reasonable doubt, satisfied so that you are sure, that he had the key to Room 6, and there is no dispute about that, so you have no difficulty with that, two, that the drugs were in the room, there is no dispute about that, so once again you have no difficulty, so you must draw the inference, members of the jury, that the drugs were in his possession, that is that they were in the room and he knew they were in the room in this case unless he can satisfy you on the balance of probabilities, that is, that it is more likely than not, despite the presumption, that he did not have these drugs in his possession, in other words in this case that he didn't know the drugs were in the room."

13. While Mr. Mullick in his skeleton argument appeared to have taken exception to these passages, at the hearing he took no issue. He does however suggest that the method of approach to the presumption of possession is a two stage one: first: know the actual packet was in the room: second: know the contents of that packet. On that approach he submitted that the passage at page 11 of the summing up which reads:

"These presumption based, you may think, purely on common sense, are there to assist you to your verdict. What it all means is that before you can convict the defendant of either of these two charges you must be satisfied so that you are sure that he was in possession of the two quantities of drugs. In this case you must be sure that he knew the drugs were in his room. That is the sole factual matter you must resolve."

is wrong in law and its effect is compounded by the answer given to the question from the jury.

14. What Mr. Mullick suggests is the right, two stage, approach stems from the appearance of both subsection (1) and subsection (3) in s.47. Those read:

"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."

"47. (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."

That is, here, one goes to s.47(1) concerning possession of the bag and then to s.47(3) as to knowledge of its contents.

15. Mr. Mullick has drawn our attention to R. v. Warner [1969] 2 AC 256, Sweet v. Parsley [1970] AC 132 and to R. v. Wong Kin Wang CA 696/1983 (unreported).

16. With respect we do not agree. In R. v. Chan Tat Kwong and another CA601/89 (unreported) this court said at p.13:

" The presumption as to possession which arises by virtue of s.47(1) of the Dangerous Drugs Ordinance is, of course, a presumption both as to physical control or custody of the drugs and knowledge of their existence. It is possession as described by Lord Diplock in D.P.P. v. Brooks [1974] A.C. 862 at p.866 in the following terms:

'In the ordinary use of the word 'possession', one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control.'

In the passage set out above the judge, when speaking of possession 'in the sense of having custody or control', dealt with the 2nd applicant's physical control of the drugs - as to which there was no real issue - and then went on to deal with the question of knowledge - a matter which was in issue.

What was essential was that the judge tell the jury that, if it was established on the balance of probabilities that the 2nd applicant had no knowledge of the dangerous drugs, then they must find that the presumption has been rebutted and acquit her."

17. This was not a case, as was Wong Kin Wang, of a person in physical possession of the container which held the drugs. The jury here had to be satisfied as having been proved beyond doubt that the applicant knew the red plastic bag was in the cistern in his room and that he knew that it contained dangerous drugs. That the evidence was inferential does not detract from the essential issues before them. If they came to the conclusion that the presumption of possession under s.47(1), which involves knowledge, arose and that it had not been rebutted, provided they had been properly directed that possession entails knowledge - and the judge told them at page 10 "If he did not know they were there, then he can't be in possession"; and again at page 11 "In this case you must be sure that he knew the drugs were in his room" -, then the jury were entitled to come to the conclusions they did.

18. S.47(3) is in our judgment a confusing provision, confusing in that it might be thought to derogate from the essentials ingredient of knowledge required to be inferred from s.47(1). Subsection (3) is in s.47 to overcome a defence that a defendant might raise that he knew he had dangerous drugs but did not know these drugs were heroin thinking them to be cannabis resin or some such.

19. When the trial judge used the emphasised phrase at page 27 he was not, as Mr. Mullick would have it, referring to a factual issue - knowledge - but to the direction on law which he was giving. On those there was clearly no issue. Had he been doing anything else he would, as Mr. Bruce put it, have been withdrawing from the jury the essential issue that lay for their consideration. It is inconceivable that the jury would have accepted that direction, given the context of all the previous correct directions which they had received, as having that effect.

20. Mr. Mullick's arguments, ingenious though they are, do not persuade us that the trial judge erred.

21. The factual issues - and the evidence relating to them upon which it is accepted that the judge fairly and properly directed - lay entirely within the province of the jury.

22. That jury was properly directed on the law. This appeal, brought as it was on matter of law and for which leave should be given, fails.