R. v. YAN WAI CHUNG

IN THE COURT OF APPEAL

No. 243 of 1995

(Criminal)

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J U D G M E N T

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Keith J. (giving the first judgment at the invitation of Nazareth V.-P.):

Introduction

1. On 10th March 1995, following a trial before Deputy Judge Beeson and a jury, the Applicant was convicted, by majorities of 6:1, of two counts of trafficking in a dangerous drug (counts 1 and 2), one count of possession of a dangerous drug (count 3), and one count of manufacturing a dangerous drug (count 4). He had pleaded not guilty to all counts. He was subsequently sentenced to 10 years' imprisonment on counts 1 and 2, to 3 years' imprisonment on count 3, and to 16 years' imprisonment on count 4. He was ordered to serve all these sentences concurrently with each other, making 16 years' imprisonment in all. He now applies for leave to appeal against his convictions on counts 3 and 4.

The Crown's case

2. On 30th November 1992, police officers were keeping observation on the Applicant in a car park in Whampoa Gardens. One of them approached the Applicant. He was dressed as a car park attendant. Although he told the Applicant that he was a police officer and produced his warrant card, the Applicant ran off. He was caught, and in the pocket of his jacket one of the officers found a packet containing a block of what was subsequently found on analysis to be 337.92 gms. of a mixture containing 160.9 gms. of salts of esters of morphine, and which was subsequently shown to have had the Applicant's thumb-print on it. These were the drugs to which count 1 related. The Applicant told the police officers that he had been instructed to deliver the drugs to another car in the car park. He was arrested and cautioned, and he told the police that he would co-operate with them and tell them whatever they asked him.

3. The car in which the Applicant had been seen to drive into the car park was then searched. In the glove compartment was found a packet containing a block of what was subsequently found on analysis to be 337.85 gms. of a mixture containing 161.45 gms. of salts of esters of morphine. These were the drugs to which count 2 related. They were almost identical in weight and content to the drugs to which count 1 related.

4. The police also found a bunch of keys in the car. The Applicant told the police that they related to a flat in Ravana Garden, Shatin, which he had been instructed to rent. In due course, the flat, which was a two-bedroomed flat, was searched. In the flat, the police found 30 packets of tablets wrapped in foil. There were 287 tablets in all. They were subsequently found on analysis to be Rohypnol. Rohypnol is a tranquilliser, available on prescription only, but they contain flunitrazepam, a dangerous drug listed in Part I of the 1st Schedule to the Dangerous Drugs Ordinance (Cap. 134) ("the Ordinance"). These tablets were the drugs to which count 3 related.

5. At the flat in Ravana Garden, the police also found various items of equipment and paraphernalia which could be used for the adulteration and mixing of drugs. They included scales, blenders, a mould and a hydraulic press. The police also found used and unused paper wrappings and rolls of cellulose tape, which indicated that drugs had been packed in the flat. Traces of salts of esters of morphine were found on the used wrappings and on the hydraulic press, though there was no forensic evidence that the Applicant had been in physical contact with the equipment or the other items found at the flat. Nor could it be proved that the two blocks of salts of esters of morphine seized by the police had been processed by the equipment found in the flat, though the two blocks of drugs seized by the police were wrapped in wrappings similar to those found in the flat. Count 4 therefore related to the manufacture of drugs which the Applicant did not dispute must have been taking place in the flat.

6. Apart from the keys to the flat which had been found in the car which the Applicant had been driving, the Applicant was linked to the flat by a car park label for Ravana Garden found in the car, and a tenancy agreement dated 26th October 1992 for the flat, naming the Applicant as the tenant of the flat which was found in the letter-box of the flat.

The defence case

7. The Applicant's case was that he had had nothing to do with what the police found at the flat. He had rented the flat because the flat he had been living in was too small. However, he had not given the landlord of his previous flat notice, and the landlord had refused to return the security deposit to him. He therefore could not afford the rent of the flat in Ravana Garden. Fortunately, he had met two people, who he only knew as Mr. Chan and Ah Keung, who were prepared to sublet the flat in Ravana Garden from him. Mr. Chan had paid him a month's rent, and the Applicant had given him the keys to the flat. However, the property agent had advised Mr. Chan to return the keys to the Applicant since the Applicant was still named as the tenant on the tenancy agreement. The Applicant claimed that he had never returned to the flat once he had shown the flat to Mr. Chan and Ah Keung, though the evidence of the police officers had been that he had admitted renting the flat at Mr. Chan's request.

8. As for the events of 30th November, the Applicant claimed that he had arranged to meet Mr. Chan at Whampoa Gardens so that Mr. Chan, who had had a new set of keys made, could return the keys to the Applicant. Mr. Chan returned the keys to the Applicant at a nearby store. The Applicant and Mr. Chan then returned to the car which the Applicant had been driving because the Applicant had agreed to give Mr. Chan a lift. He put the keys into the car, and that was when the police arrived on the scene. Mr. Chan ran off and escaped. The Applicant denied that he had had any drugs on him, and claimed that the drugs to which counts 1 and 2 related were in fact in a plastic bag which Mr. Chan had been carrying, and which Mr. Chan had left at the scene when he ran off. The Applicant denied running away from the police when they revealed who they were, or making the admissions attributed to him, and he said that his thumb-print came to be on the first packet of drugs because the police had handed it to him and asked him what they were. His case was that the police decided to frame him when they realized that Mr. Chan had escaped. A number of witnesses were called on the Applicant's behalf, all of whom supported to a greater or lesser extent various parts of the Applicant's version of events.

The measurements of the two blocks of drugs

9. There was one aspect of the evidence which Mr. John Mullick for the Applicant in his skeleton argument claims was not satisfactorily dealt with by the judge in her summing-up. It related to the mould found at the flat. The judge told the jury that the measurements of the two blocks of drugs seized by the police were similar to the measurements of blocks of drugs which the mould, when used in conjunction with the hydraulic press, was capable of producing. That was important, because if the items of equipment found in the flat had produced the two blocks of salts of esters of morphine seized by the police, it might have been open to the jury, when taken with the other evidence, to infer that the Applicant knew that drugs were being manufactured in the flat. The criticism of the judge is that she overstated the strength of that evidence. That was because the forensic scientist called by the Crown agreed that the thickness of at least one of the blocks of drugs seized by the police indicated that it had probably come from another mould. However, having overstated the evidence initially, the judge corrected herself later on in her summing-up, and reminded the jury of the true effect of the evidence. Having read carefully the two relevant passages in the summing-up, I do not think that the jury would have ended up being confused as to what the true effect of the evidence had actually been.

The only criticisms of substance

10. In my view, the only criticisms of substance which can be levelled at the summing-up are how the judge dealt with the ingredients of the offence of manufacturing drugs, and the way she dealt with how the Crown sought to prove that the Applicant knew (a) that drugs were being manufactured in the flat and (b) that Rohypnol tablets were in the flat.

Count 4

11. Manufacturing a dangerous drug is made a criminal offence by section 6 of the Ordinance. Section 6(1) provides:

"Save under and in accordance with this Ordinance or under and in accordance with a licence granted by the Director thereunder and on the premises specified in such licence, no person shall-

(a) manufacture a dangerous drug; or

(b) do or offer to do an act preparatory to or for the purpose of manufacturing a dangerous drug."

It is well established that sections 6(1)(a) and 6(1)(b) create separate offences. Section 6(1)(a) relates to the manufacture of drugs, and section 6(1)(b) relates to such steps as have to be taken before the manufacture begins to enable the manufacture to take place. The indictment charged the Applicant in count 4 with manufacturing a dangerous drug contrary to section 6(1)(a) of the Ordinance. Accordingly, what the Crown had set out to prove was that the Applicant had been engaged in the manufacture of drugs, rather than doing or offering to do an act preparatory to or for the purpose of manufacturing drugs.

12. Of course, the Crown did not have to prove that the Applicant had personally taken part in the manufacture of drugs. It was open to the Crown to put its case on that basis, but it was also open to the Crown to put its case on the basis that even if the Applicant had not personally taken part in the manufacture of drugs, he had nevertheless been a party to a joint enterprise to manufacture drugs and had done something to help to put that enterprise into effect. Even though the Applicant was not charged with an offence contrary to section 6(1)(b), the Crown's case on section 6(1)(a) could therefore have been put on the basis that what he had done to put the enterprise into effect was either

(a) to rent or sublet the flat in Ravana Garden knowing that it was to be used for the manufacture of drugs, or

(b) if he had not known that it was to be used for the manufacture of drugs when he rented or sublet it, to permit those who had been manufacturing drugs there to continue to do so once he knew that that was what the flat was being used for.

13. In view of the different ways in which the Crown's case could have been put, it was necessary, in my view, for the judge to tailor her directions to the jury as to what the Crown had to prove so as to relate them to the facts of the case. Clearly, she had to tell them what amounted in law to the manufacture of drugs, and her direction on that issue cannot be faulted. It followed the definition of "manufacture" in section 2(1) of the Ordinance. The more difficult question relates to the sufficiency of her direction relating to what the Crown had to prove for the Applicant to be convicted of manufacturing drugs.

14. Towards the end of her summing-up, the judge said that what the jury had to decide on count 4 was whether, on the primary facts which the jury found proved, "the only reasonable inference" was that the Applicant "was involved, either alone or with other people in the manufacturing". That direction was fine so far as it went, but it did not go far enough because it begged the question as to what constituted the Applicant being "involved" in the manufacture of drugs. To find out what being "involved" meant, we have to look elsewhere in the summing-up.

15. Having read the whole of the summing-up with care, I am satisfied that what the judge was telling the jury was that they could find that the Applicant was involved in the manufacture of drugs if he knew that drugs were being manufactured there. Mr. Jackson Poon for the Crown did not seek to argue otherwise.

16. In my view, this direction was both inadequate and wrong in law. Mere knowledge that drugs were being manufactured in the flat (whether or not it was a flat which he rented and to which he had access) could not by itself have meant that the Applicant was involved in their manufacture. The jury should have been directed that in addition to knowing that drugs were being manufactured in the flat, the Applicant had to have done something to help. The jury might have been able to infer that he had done something to help, for example, from the fact that he had rented or sublet the flat in the first place, provided, of course, that they were satisfied that he had done so for it to be used for the manufacture of drugs. Alternatively, if the jury had not been satisfied that the Applicant had known when he rented or sublet the flat that it was to be used for manufacturing drugs, the jury might well have been able to infer that he had done something to help in the manufacture of drugs by permitting the flat to be used for that purpose once he had discovered what was going on there. But the fact remains that the jury was never told that they had to find that he had to have done something to help before he could have been convicted on count 4. What the judge did, in my view, was simply to equate manufacturing drugs with knowledge that manufacturing drugs was taking place. On her direction, it could be that the jury convicted the Applicant on count 4 even though the Applicant had come to know that manufacturing drugs was taking place in the flat but had simply not taken any steps to do anything about it. If that had been all that the jury were sure about, the Applicant would have been entitled to have been acquitted on count 4.

17. Moreover, in dealing with how the Crown could prove that the Applicant knew that drugs were being manufactured in the flat, the judge misdirected the jury further. At p.12 G-L of the transcript of the summing-up, she said this:

"If you find that he was in custody and control of the flat, you can impute to him - if you follow the chain of inference, you can impute to him knowledge of the contents of the flat. And in that sense he would possess the Rohypnol tablets, he would be aware of the manufacturing process that was being carried out at the flat at Ravana Gardens."

What the judge, in my view, was telling jury there was that they could infer that the Applicant knew that drugs were being manufactured in the flat from the facts which she had already reminded the jury of, namely that he was the tenant of the flat, and that his possession of the keys (on the assumption that they had not just been returned to him) meant that he had access to the flat. I can see how that could have been a proper direction if the jury were sure that the Applicant had been living there as well - or had at least been visiting the flat. But unless they had been sure of that, I do not think that it was open to the jury without more to conclude that an absent tenant such as the Applicant knew what was going on in his flat.

18. For these reasons, the conviction of the Applicant on count 4 cannot stand, and in my view it must be quashed.

Count 3

19. The quashing of the Applicant's conviction on count 4 does not necessarily mean that his conviction on count 3 must be quashed as well. Even though the Applicant may not have been a party to the manufacture of drugs at the flat, he could still have been in possession of whatever was in the flat. In directing the jury what the Crown had to prove before the Applicant could be convicted on count 3, the judge did not limit what had to be proved to knowledge on the part of the Applicant that there were drugs in the flat. She directed the jury that in addition to being satisfied that the Applicant knew that there were drugs in the flat, the jury had to be sure that they were in the Applicant's custody or control, and that it was open to the jury to infer that the drugs were in his custody or control from the fact that he had been a tenant of the flat, and that he had had access to the flat. So far, so good.

20. However, the correctness of the judge's direction on count 3 was vitiated, in my view, by the direction to which I have already referred on p.12 of the transcript of the summing-up as to how the Crown could prove that the Applicant knew that there were drugs in the flat. That direction would have been a proper one if the judge had added that, in order to infer knowledge on the part of the Applicant that there had been drugs in the flat merely from the facts that he was the tenant of the flat and had access to it, the jury had to be sure that the Applicant was either living in the flat or had at the very least been visiting it. For this reason, the Applicant's conviction on count 3 has to be quashed as well.

Conclusion

21. For my part, I do not think that this is an appropriate case for the application of the proviso. That is because I cannot be sure that the jury would have convicted the Applicant on counts 3 and 4 had the jury received a proper direction from the judge. I think that they probably would have convicted him on counts 3 and 4 with a proper direction, but I cannot be sure that that would inevitably have been the outcome. Accordingly, for my part, I would allow the application for leave to appeal against the convictions on counts 3 and 4, I would treat the hearing of the application as the hearing of the appeal, I would allow the appeal, and I would quash the convictions of the Applicant on counts 3 and 4. I would invite argument as to whether in those circumstances there should be a retrial of the Applicant on counts 3 and 4.

Liu J.A.:

22. I agree. I only wish to add: as far as counts 3 and 4 are concerned, this is a case which was beset by the presence of a sub-tenancy. Mr. Mullick has drawn our attention to the inter-relationship between a tenant and a sub-tenant and the legal complexities in linking possession to knowledge and/or participation, that could arise from such a relationship.

Nazareth V.-P.:

23. I also agree with my Lord, Keith J. save that I do not find it necessary for myself to express any view upon whether participation by way only of a preparatory act could fall within the scope of s.6(i)(a) of the Dangerous Drugs Ordinance if performed in the course of a joint venture.

24. The result is that we grant the leave. We treat the hearing of the application as the hearing of the appeal, quash the convictions on counts 3 and 4 and set aside the sentences on those two counts.