THE QUEEN v. YU KWOK HING

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JUDGMENT

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Silke, J.A.:

1. The Applicant, Yu Kwok Hing, was convicted after trial before His Honour judge Rattlgan, sitting as a Deputy Judge of the High Court, and a jury on a three-court indictment. There was tried with him, but charge alone on the first count in that indictment, one Tse Ying Ming. That court related to possession of dangerous drugs for the purpose of unlawful trafficking and the quantity was stated to be 5,496.52 grammes of a mixture containing 803.38 grammes of salts of esters of morphine together with 14.86 grammes of a resinous substance containing 0.79 grammes of tetrahydro-cannabinol.

2. The second count, which solely concerned the Applicant, related to possession for the purpose of unlawful trafficking of the dangerous drugs referred to in the first count in the mixture of 5,496.52 grammes containing 803.38 grammes of salts of esters of morphine. The third count also solely concerned the Applicant and alleged possession of 6.90 grammes of a mixture containing 1.01 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

3. Mr. Tse pleaded guilty to the first count and became, at a later stage, a defence witness.

4. The facts, very briefly, were that on the 19th of October 1985, and that was the date referred to in all three counts, customs officers kept observation near the Shun Lee Car Park of Shun Lee Estate, near Shun King Street, Kowloon. They saw a car, No. CS6777, come out of the car park of the estate. That car was driven by Tse. They followed, it took a circuitous route and in the course of that circuitous route, went down a cul-de-sac which led to the United Christian Hospital. Eventually it came into Shun Ching Street and parked near the Shun Lee Theatre. Tse sat in the car. Shortly afterwards, another car, a Toyota CP7950, arrived at the scene and parked immediately behind Tse's car. The Applicant was the driver of that car. The Applicant got out of his car, opened its boot and took out from it two plastic bags. He carried those plastic bags to the rear of Tse's car. Tse himself got out and went to the rear of his car and the two bags were put by the Applicant in the boot of Tse's car. Both drivers returned to their respective cars and the cars then drove off, one after the other. They were followed by customs officers. Tse was stopped and arrested. The Applicant's car was chased for some little distance, crashed and the Applicant was arrested, he having tried to run away. Behind a sun-visor in the Applicant's car was found, wrapped in a newspaper, the quantity of drugs the subject of the third count.

5. The Applicant had, at the outset of the trial, pleaded guilty to simple possession of the newspaper wrapped packet and it featured as part of the defence raised. That plea was not accepted and the trial proceeded on the basis of his having being in possession of those drugs for the purpose of unlawful trafficking.

6. The bags which were found in the back of Tse's car when it was stopped were the bags which contained the quantity of drugs mentioned in the first and the second counts.

7. The defence was that the customs officers had fabricated the transaction which took place outside the theatre. The Applicant said he was an addict. He had been an addict for some years. He had a supplier of drugs called Wong. Wong, shortly before this incident, had gone out of the picture and had been replaced by Tse. He had found himself short of drugs in the early morning of the 19th of October and he paged Tse. Arrangements were made for delivery to him of drugs for his own consumption and at the usual place. This was outside the Shun Lee Theatre. The price was $300. He had gone there for the purpose of receiving those drugs from Tse; that they had arrived in a order different from that indicated by the evidence of the customs officers; that the only transaction which took place at the theatre was the transference of this packet of drugs; that he had run away because he was in possession of it.

8. Tse gave evidence and said that he had been asked by a Mr. Chan to safe custody certain drugs of his. He had also, he said, been asked by the Applicant to provide him with his usual supply. He combined both enterprises in the same journey. He had gone. down the cul-de-sac at Sau Nga Road which leads to the United Christian Hospital because it had been arranged that he collect the drugs in the car park to the casualty department of that hospital. The hospital is situated at the end of that cul-de-sac which is a dog-legged road. He went there, he collected the drugs and he had then gone on to transact his business with the Applicant.

9. He had not at the time he gave evidence been sentenced but he had, as I have said, already pleaded guilty to the first count.

10. There were other matters raised in the course of the defence such as the suggestion that because the Applicant was not present at the time the drugs were photographed subsequent to their seizure, the customs officers may have had, at that stage anyway, some doubt as to the Applicant's participation in the offence. But the main suggestion was that the evidence as to the transaction was fabrication, and that the watching customs officers intended to or had hoped to get offenders in relation to dangerous drugs and included the Applicant as well as Tse.

11. The criticisms levelled at the summing up related to two aspects. As Mr. Rodway, with him Mr. Plowman, who appears in this Court on behalf of the Applicant has dealt with them in reverse order as they appeared in the grounds, I shall take the same course. The first he dealt with was that relating to the directions of the trial judge on possession. Now, the issue here on its face was a very clear one: Was the Applicant in possession of the bag of drugs in the back of his car as indicated by the evidence of the customs officers? Were the customs officers to be believed?

12. Unfortunately, the trial judge over directed. He had at page 5 set out what the issue was when he said:

"The question you have got to decide is whether the Crown has proved to your satisfaction that the defendant was in possession of these drugs for the purpose of unlawful trafficking."

He then went on to give elaborate and detailed directions'' on what is meant by possession. He indicated that possession could be physical or could be constructive - the pen held in the hand analogy - but then he went on to say:

"You are not concerned with constructive possession in this case."

Perhaps it would have been better that he made no reference to it at all. Having referred the jury to sections 46 and 47 of the Dangerous Drugs Ordinance, he then went on, and it should be remembered that the exhibits numbers were respectively the bags P2 and P23 and a small packet P31:

"On the direct evidence before you the Crown alleges that the presumptions clearly apply as the defendant was the person who had possession and control of the bags, Exhibits P2, P23, and P31. Accepting then that the presumptions do apply and that you are satisfied that the basic facts have been proved beyond reasonable doubt, the question then is: has the defendant shown on the balance of probabilities that he did not know the existence of the dangerous drugs in the bags?"

A further reference was:

"In approaching this case, you will have to decide if the presumption as to the possession of dangerous drugs applies or not."

And finally he made reference to the non-rebuttal of the presumption when he said:

"If you accept the customs officers' evidence when they said they saw the defendant handling the dangerous drugs and putting it into D1's car, then of course the defendant has not rebutted the presumption and you would have to convict him."

13. There is no presumption as to actual possession: there can be as to constructive possession by virtue of having such as the keys to something. There is, however, a presumption once possession has been proved, as to the consequences of that possession. It is necessary in the normal run of drug cases to direct the jury on the meaning of possession and then to go on to direct them as to the presumption of knowledge which stems from the proof of possession and as to the presumption of possession for trafficking which stems from the presumption of knowledge and the proved quantity of the drugs.

14. Here, there was no issue as to possession in the sense that either the Applicant had possession of the bags containing drugs in the manner described by the customs officers or he knew nothing of them as was the defence case. He had accepted that he had possession, and knowledge, of the drugs under the sun-visor.

15. It is Mr. Rodway's contention that the jury were sufficiently misled by the voluminous directions in relation to possession and the presumptions so that, even if they did accept the defence of merely a single small drug transaction while the bags remained throughout in Tse's car, they might have thought that in the light of the directions given to them that the Applicant could be deemed to have been in possession of the bags. The directions of the trial judge do, with respect, give the appearance of confusing possession itself with the consequences of that possession.

16. The issue that we have to consider on this aspect of the appeal is did these directions have the effect of inhibiting or indeed prohibiting the jury from a proper evaluation of the defence and of the issues.

17. The second point that has been raised is a failure to adequately direct the jury as to the nature of the defence case. I take the view that each ground impinges to an extent upon the other. If the jury were not properly directed as to the defence case and that defence was not properly placed before them, - and there is an obligation upon a trial judge to put a defence, however tenuous that defence may be, in front of the jury - then there might well be greater point to the first submissions as to the confusing directions upon possession.

18. I have briefly set out earlier what the defence was and it was almost as briefly set out in the summing up. But it was a net defence. It would have been preferable had somewhat more detail been given of certain aspects of it and I note that the issue of D1's car disappearing from the sight of the surveillance officers and going into the hospital grounds was dealt with somewhat cursorily. The trial judge referred to the evidence of the third prosecution witness, Customs Officer Wong, that he had the car CS6777 under observation through some wire mesh while his own car still remained in Hip Wo Street and saw it do a "U" turn. Customs Officer Li, who was the first prosecution witness called had given evidence that Hip Wo Street was very busy, that he and his colleagues did not wish to disclose themselves to D1 and that, knowing Sau Nga Street to be a cul-de-sac, they did not enter it but remained somewhere in Hip Wo Street making a "U" turn in order to follow D1 when he emerged. He said that he "assumed" that Tse had done a "U'' turn because he saw him come back out again. This apparent difference, and the difference in traffic conditions, described by the second prosecution witness as congested, contrasted with theevidence of Customs Officer Wong. Nevertheless, the salient points of the defence were put. This was a short three-day evidence case and the jury had heard the evidence of the Applicant and of his witness immediately before they were addressed by counsel and then the trial judge summed up.

19. At the end of the summing up, the issue was put again to the jury by the trial judge when, having described the evidence as "straightforward and simple", he went on:

"You are the judges of fact. You have seen all the witnesses give evidence and it is for you and you only to decide who is telling the truth."

There were deficiencies in this summing up. To the question posed a few moments ago, we add the lack of detail in relation to the defence as set out in the directions in giving it consideration. We have, however, come to the conclusion that the summing up as a whole did not in the end result in the jury being prohibited or inhibited from a proper evaluation of the defence or of the issues so as to lead to a miscarriage of justice.

20. In those circumstances, we would grant the application for leave to appeal but dismiss the appeal.