TANG WING KAIJ v. R.

IN THE COURT OF APPEAL

1994, No. 163
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The applicant was convicted after trial before Deputy Judge Jones and a jury of trafficking in a dangerous drug, namely 724 kilogrammes of herbal cannabis. He now applies for leave to appeal against that conviction.

2. It is not necessary to go into any detail as to the evidence given at the trial beyond stating that, in the early hours of 19 July 1992 at the loading bay of the Marina Club at Aberdeen, police officers observed bags being unloaded from a boat onto a lorry. They intercepted the applicant and another man. When asked by the police what he and the other man were doing, the applicant replied that they had just finished moving things and were going home.

3. He later made a statement under caution in which he said that he had been asked to move things but that he did not inquire what it was that he was required to move. Subsequently, during the course of moving them, he felt that they were soft and, on asking what they were, was told that they were cigarettes. A search of the applicant's person revealed $11,800 in cash and a portable telephone. Another portable telephone was found in a private car parked outside the Marina Club. This car was registered in the name of a man who was the driver of the lorry onto which the drugs were loaded, and the telephone found in that car was registered in the name of his girlfriend. Shortly before the transfer of the drugs from the boat to the lorry, a call had been made over that portable phone to the one found in the applicant's possession.

4. There was also evidence the applicant had earlier approached a man and enquired from him about hiring a lorry. The man had then introduced the applicant to the owner of the lorry which was subsequently used in receiving the drugs at the loading bay.

5. The applicant's defence was that he had been involved in the unloading of the bags onto the lorry from the boat but that he had all along thought that what he had been handling was smuggled cigarettes. Had he thought that the operation involved drugs, he would never have participated. The issues before the jury were therefore clear-cut. Did the applicant know that the bags contained a dangerous drug and was therefore in possession of that drug? If so, was he in possession of the drug for the purpose of trafficking?

6. The deputy judge directed the jury as follows:

"There is a statutory presumption in the Dangerous Drugs Ordinance which governs anyone proved to have in his physical possession anything containing a dangerous drug. By physical possession, it means just that and no more. And here it is beyond argument that the accused had in his physical possession the bags containing the dangerous drugs.

The presumption which follows this physical possession of anything containing dangerous drugs is that the person possessing the container shall be presumed, until the contrary is proved, presumed by the law to have had the drugs themselves in his legal possession.

The effect of the presumption is that the burden of proving that he did not know the nature of the contents of the bags falls on the accused. To discharge that burden, he must show by his evidence or elsewhere in the evidence as a whole that on the balance of probabilities he did not know that the contents of the bags were dangerous drugs. This is a departure from the normal rule in our law that the burden of all proof is on the prosecution to a level beyond reasonable doubt.

If therefore you think that on the balance of probabilities on the evidence the accused did not know the true contents of the bags, then you will acquit him."

7. There then follows a passage to which Mr Macrae, who appeared for the applicant, complains.

"If, however, you find that the balance of probabilities on the evidence points to the accused knowing the contents of the bags, you must take the matter a stage further."

8. The judge continued:

"The accused's possession of the goods, the drugs, even with knowledge of their true nature, can only lead you to convict him if you are satisfied beyond a reasonable doubt that he possessed them for the purpose of trafficking. In deciding this, you cannot look into his mind, as I have told you earlier. What you must do is consider in all the circumstances what you think the accused's intention to have been in possessing those drugs if you found that he has possessed them in the legal sense. If you are satisfied that he must beyond a reasonable doubt have intended to traffic in them, then you will convict him; if not, you will acquit him.

In summary then, the stages are these in your consideration of the accused's mental state. Firstly, the accused has admitted in his evidence that he was in physical possession of the bags containing the dangerous drugs but, secondly, he has denied knowing what were in the bags. Therefore, thirdly, the legal presumption is raised against him that he did not know what was in the bags and, fourthly, the burden of proof is on him to show positively that he did not know what was in the bags, if he can do so. Fifthly, his burden of showing he did not know what was in the bags is discharged by showing it is more probable than not - that is a 51 per cent situation - more probable than not on the evidence that he did not know what was in the bags. If he does that, you acquit him. If you find it, on the other hand, more probable than not that he knew what was in the bags, you must make the further enquiry as to his intention in possessing the dangerous drugs."

9. Mr Macrae took exception to this last sentence and to the deputy judge's earlier use of the word 'positively'. The judge then continued:

"You do this by having regard to all the surrounding circumstances, and the test at this stage is beyond a reasonable doubt when your are gauging his intention. If you find on that basis an intention to traffic in the goods, the dangerous drugs which you found he possessed, then you will convict him as charged.

What you are deciding here is of course no more than the accused's truthfulness in saying he did not know the bags contained dangerous drugs. In reaching your decision on that crucial point you should consider all the evidence surrounding events on the night of 18 and 19 July."

10. Later the deputy judge said this:

"The accused has admitted he was involved in an illegal operation to smuggle cigarettes but that is all he says he knew of the contents of the bags. Even though cigarette smuggling is an illegal activity, he is entitled to be acquitted if you find, applying the tests I have just described, that he did not know the true contents of the bags."

11. Mr Macrae submitted that the deputy judge's directions "were confusing and wrong in law and effectively permitted the jury to convict the applicant if they considered it more probable than not that he knew what was in the bags". He further submitted that the deputy judge's use of the word "positively" might have led the jury to think that the burden cast upon the applicant to rebut the presumptions was one of proof beyond a reasonable doubt, and that the penultimate paragraph in the passages that we have quoted from summing-up wrongly left the jury with the impression that the applicant's guilt depended on whether he was being truthful or not.

12. We find no merit in these submissions. Since the applicant admitted that he had been in possession of the bags which were found to contain the dangerous drug, the presumptions under s47 of the Dangerous Drugs Ordinance Cap 134, plainly arose. The deputy judge correctly directed the jury as to the standard of proof required to rebut the presumptions that the applicant was in possession of the drug and knew its nature. We do not consider that he was in error or in any way misled the jury in telling them that they were deciding the case on the basis of the applicant's truthfulness. This was the effect of s47. The outcome of the case indeed depended on what credence the jury gave to the applicant's explanation that he thought that he had been moving cigarettes, not drugs, from the boat to the lorry.

13. In the light of the deputy judge's correct direction on the standard of proof the jury could have been in no doubt that the burden that was cast on the applicant was to satisfy them that it was more probable than not that he was telling the truth in giving that explanation. The deputy judge's use of the word "positively" was no more than a tautology. Mr Macrae accepted during the course of argument that once the jury decided that the applicant had not rebutted the presumption under s47 it was inevitable, in the light of the quantity of the drug involved and its value which exceeded $11m, that they would be satisfied beyond reasonable doubt that he had it in his possession for the purpose of trafficking. The application is therefore refused.