THE QUEEN v. TSANG WAN KWAI

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JUDGMENT

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Sir Derek Cons delivered the judgment of the Court:

1. Tsang Wan Kwai was convicted by the unanimous decision of a jury before Barnes J. of possessing dangerous drugs for the purpose of unlawful trafficking. He applies, with the assistance of Mrs. Spruce of counsel, for leave to appeal against the conviction.

2. Count 1 of the indictment, on which he was convicted at trial, alleged that he was in joint possession with the 2nd Defendant, a boy 14 years old, of 5,010 grammes of a mixture which contained 266 grammes of salts of esters  of morphine. The indictment contained, as an alternative, Count 2, which was laid against Tsang alone, and with which in the event the jury did not need to trouble themselves, of possession of 4,555 grammes of a mixture containing 243 grammes of salts of esters of morphine.

3. The evidence before the jury was that two constables, for convenience we will call them Constable A and Constable B, were keeping observation in the Wong Tai Sin area in the early hours on the 5th December 1988. They saw Tsang and the 2nd Defendant meet at a bus stop. The two appeared to have a conversation and went off together into an alleyway called Lung Chi Path. They re-appeared a few minutes later, Tsang carrying what the judge described as "a big shopping bag" and the 2nd Defendant a small plastic bag. When the police approached and revealed their identities Tsang and the 2nd Defendant tried to tun away. Tsang was caught immediately by Constable A. Constable B had to chase after the 2nd Defendant, but eventually caught him, at which moment the 2nd Defendant threw away the small plastic bag. The constable recovered it.

4. The drugs, the subject of Count 1, represent the sum total of what was found later in both bags. The alternative Count 2 related to the drugs in the big shopping bag alone. The evidence which we have .just recounted was given by Constable B only. Constable A was not called at the trial. We do not know why. There was of course other evidence, i.e. the usual evidence of the officer who is generally called the Dangerous Drug PC while the evidence of the Government Chemist and a photographer who took photographs of the contents of the two bags was read out to the jury.

5. During the documentary stage of the appeal Tsang put forward two sets of homemade grounds of appeal, none of which have been pursued by Mrs. Spruce today. She principally relies on the suggestion that there was no evidence to show that the big shopping bag contained any drugs at all until certain packets were taken from it and photographed at the police station. That was at 8:50 in the morning, some two-and-a-half hours after the arrest. Mrs. Spruce points out that there was; in addition, a gap at the time Tsang was arrested when Constable B was chasing after the 2nd Defendant and therefore not able to say what, if anything, had occurred in relation to Tsang. She argues that in the circumstance there was not sufficient evidence for the jury in question, or indeed any jury faced with similar circumstances, to be sufficiently satisfied that the packets which were subsequently taken from the bag to be photographed had been in the bag when Tsang was arrested by Constable A.

6. This matter was canvassed to some extent at the trial and was dealt with, as far as it was, by the judge in his summing up in these words:

"On the other hand if you think that the police officer did see the 1st Defendant with that grey shopping bay and your common sense tells you that it must have then contained the substance which the Government Chemist subsequently analysed ..."

and he then refers again to the presumptions contained in the Dangerous Drugs Ordinance:

"…then the only result would be that you must find - that you could find anyway, that the 2nd count has been proved against him."

7. The judge's reference to common sense must relate to the logical conclusion that if the jury were to find that Tsang was carrying the bag when arrested, but that it did not then contain drugs, the police officers must have inserted the drugs thereafter in order to frame him wrongfully for the offence. No suggestion of that kind was put to Constable B when he gave evidence. The suggestion of frame up that was made, although no evidence was later adduced in support, was of a different kind and was based on the suggestion that Tsang had simply come out of a nearby restaurant, having nothing to do with the bag or the 2nd Defendant, and had then been arrested.

8. The crucial question for the jury in the circumstances of this trial, bearing in mind the presumptions contained in the Dangerous Drugs Ordinance and the fact that Tsang did not give evidence, was "were the ten packets of dangerous drugs which amounted to some 4,555 grammes of a mixture in the bag when the Defendant was carrying it?'". In our view the evidence was sufficient to support the affirmative conclusion of the jury. We therefore find no merit in this ground of appeal.

9. The second ground of appeal, which is in effect a fall back position should the principal ground fail, as it does, is that there was no evidence from which the jury could infer that Tsang was in joint possession of the drugs in the two bag's together with the 2nd Defendant.

10. The judge in effect advised the jury that this was so, but he did not, as he might have done had there been a submission made to him, withdraw the charge of joint possession from the jury. Mr. Saw for the Crown has made a gallant attempt to direct our attention to factors which could support the conclusion of the jury but, with every respect to him, the evidence was not there. The evidence that was there and which was clearly accepted by the jury showed that Tsang was in possession of the grey shopping bag which contained dangerous drugs within the Ordinance. He did not rebut the presumptions which were thus raised against him. For that reason he cannot avoid guilt on the alternative Count 2.

11. For these reasons we allow his application for leave to appeal against conviction, treat the hearing as the appeal, set aside the conviction on Count 1 of the indictment and substitute therefore a conviction on Count 2 of the indictment.