R. v. EMEKA JOE UDEOJI

HEADNOTE

A direction as to what is generally referred to as "wilful blindness" should not be given unless raised by the evidence.

----------------------------

JUDGMENT

----------------------------

Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced a charge of trafficking in dangerous drugs contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars alleged that, on the 20th day of October, 1991, at the Baggage Reclaim Area, Hong Kong International Airport, Kai Tak, Hong Kong, he unlawfully trafficked in a dangerous drug, namely 9,134.57 grammes of a mixture containing 2,449.25 grammes of esters of morphine. He pleaded not guilty to that charge and was, after trial before Deputy Judge Jones and a jury, found guilty and sentenced to imprisonment for 20 years. He now appeals against that conviction and sentence.

3. It was undisputed that the applicant on 20th October 1991 arrived on a flight from Kathmandu and that the drugs, the subject of the count, were found in his baggage wrapped in three rolls of plastic sheeting. Customs Inspector Wong gave evidence that, when the applicant was asked what was inside the rolls he replied "Nothing". The drugs were found wrapped in an issue of the "Times of India" and the applicant's finger and palm prints were found on that newspaper and also on the external brown wrapping of the rolls. Inspector Wong said that after the drugs were found he asked the applicant what they were and the applicant then replied "Nigerian medicine".

4. Under cross-examination, Senior Customs Inspector Chu gave the following answers:

"Q. So in respect of some items of this defendant you did ask the contents.

A. Yes.

Q. What was his answer?

A. For some items he said they were daily use items, some of them clothes.

Q. He also said he was carrying raw materials for manufacture of medicine.

A No. When I was examining his luggage at the conveyor belt, he did not say that.

Q. Did he say that in your hearing at any other time?

A To my recollection, in the X-ray room when being asked by Inspector Wong he did say that. After something was found from the X-ray and it was cut open, then in reply to Mr. Wong's question, he mentioned it."

5. It was the applicant's evidence that the rolls were given to him by a Mr. Osakwe and that he had no knowledge of the existence of any dangerous drugs. Under cross-examination the following passage occurred:

"Q. Inside the three rolls of plastic sheets Customs Officers found some drugs. What is your explanation?

A. I don't know it is drugs; I only know it is raw materials for medicine as he told me."

While the evidence of the applicant was somewhat confused, his defence clearly was that he had been given the plastic rolls in which the dangerous drugs were found by a Mr. Osakwe, that he had been asked to take them to Lagos and that he believed they contained raw materials for medicine. He was provided with air tickets, a rail passage from Bombay to Katmandu and was to be given a financial reward. It was his contention that he believed this to be an entirely proper transaction and that he was not engaging in anything illicit. He contended that he was the innocent dupe of Mr. Osakwe.

6. The principle complaint urged by Mr. Mullick, who appears for the applicant, arises out of the following four passages in the Summing-up.

"The prosecution is of course looking to prove that the defendant knew, or had good reason to suppose he was transporting dangerous drugs."

"But the law says that a man's state of mind may be guilty not only if he knew something but also if he should in all the circumstances have strongly suspected something and deliberately shut his eyes. A man may not shut his eyes in circumstances where he should have had suspicions as to what he was carrying and by shutting his eyes escape the consequences of his act. He may not say in effect: 'Don't tell me what I am carrying and then if I am caught I can't be guilty."

"It would therefore be sufficient for a finding of guilt if you find that he knew of the existence of the brown powdery substance and that he must have known or strongly suspected from all the circumstances that it was a prohibited substance for bringing into Hong Kong."

"Even if you reject the conclusion that he had actual knowledge of the brown powdery substance you should still consider whether he should have suspected from all the circumstances that he was bringing a "prohibited drug" into Hong Kong." (Emphasis supplied.)

7. In our view this was not a case which called for a direction as to, what is sometimes called, "wilful blindness". The applicant's defence was that he had no knowledge of anything suspicious and that he had been completely duped by Mr. Osakwe. However that may be, it seems that the judge felt that the jury would be assisted by a direction as to the proper approach to take if they considered, despite the fact that there was no evidence in this regard, that the applicant's suspicions had been aroused that he had been given a dangerous drug to take to Hong Kong. However, that was not the situation that the judge in fact invited the jury to consider. His direction related to a consideration of whether the applicant should have suspected that he was bringing a "prohibited drug" into Hong Kong.

8. The jury, therefore, may well have arrived at their finding of guilt on the basis that the applicant should have entertained such a suspicion. It was clearly necessary that the direction should correctly state the law. We are satisfied that to tell the jury that they could find guilt if the applicant "should have suspected from all the circumstances" that he was bringing dangerous drugs into Hong Kong does not do so. Those words suggest that it would be proper to apply an objective test to the determination of knowledge. The proper direction, where considerations involving a deliberate refusal by a defendant to address himself to facts apparent to him which, on any assessment, would be sufficient to establish knowledge, is not an easy  one. It must depend very much upon the facts of each case. What is, however, clear is that the jury's determination must not be based upon an objective assessment. This was a serious misdirection and the appeal must, therefore, succeed.

9. We feel it appropriate before leaving this appeal to comment upon two other matters.

10. On three occasions the judge told the jury that if the applicant raised a reasonable doubt in their minds "in favour of his telling the truth" they should acquit. We feel it undesirable to use this unconventional formula. The reasonable doubt with which the jury are concerned is as to guilt and it is this that they should be told.

11. Finally, the references by the judge to "prohibited drugs" and "prohibited substances" on a number of occasions was inappropriate. We think it desirable, having explained to the jury the relevant terms of the Dangerous Drugs Ordinance, to adopt the terminology used therein, i.e. "dangerous drugs"

12. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the appeal is allowed.

[Having heard counsel a retrial was ordered.]