HKSAR v. CHAN MING FAI

CACC 308/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 308 OF 2000

(ON APPEAL FROM HCCC NO. 56 OF 2000)

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J U D G M E N T

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Wong JA:

1. The applicant was convicted after trial before Deputy Judge Hawkes and a jury in the Court of First Instance of one count of trafficking in 483.55 grammes of a crystalline solid containing 479.67 grammes of methampetamine hydrochloride, commonly known as 'Ice'. He now applies for leave to appeal against his conviction.

2. The prosecution case was that the police saw the applicant picking up a beige paper bag from a rubbish bin outside Nos. 67-75 Java Road, North Point, Hong Kong. On examination, the beige paper bag was found to contain the ice, the subject matter in the indictment. The applicant was arrested and said nothing under caution. But later in the police station, he made three statements under caution. In the first statement, he said that he was asked to take the beige paper bag from North Point to Gala Shopping Centre in Kowloon for $2,000. He thought it was dangerous drug inside the bag. He had not picked up the bag when he was arrested. He just wanted to get the initial payment of $1,000 and then go away without picking up the bag. The second and third statements were in terms similar to the first one but contained more details. For example, he said that he agreed to traffic in dangerous drug and was then taken to the vicinity of the beige paper bag. It is not necessary to repeat the contents of the statements in their entirety, suffice it to say that what the applicant told the police was strong evidence to prove guilt. There was no challenge to the first statement and the other two statements were admitted into evidence after a voir dire.

3. The applicant did not give evidence or call witness at the trial. It was, however, put to the officers in cross-examination that the applicant had not removed or even touched the beige paper bag at the time he was arrested by the police. Therefore he was not in possession. This was the defence case at the trial. The allegation was categorically denied by the officers.

4. Only one ground of appeal was argued by Mr. McNamara on behalf of the applicant and that was the deputy judge's directions in relation to the presumption on possession under s.47 of the Dangerous Drugs Ordinance were vague and confusing. There was no complaint of misdirection by the judge but rather that the jury were not adequately directed on the question of possession. The judge finished his summing up at 11:08 a.m. on 13 July 2000 and the jury were sent out to consider their verdict. At 12:46 p.m. they sent a question to the judge which appeared to be a request for a copy of the presumption in the Ordinance. For the next 32 minutes, there was a discussion between judge and counsel on the form of the answer to be given to the jury. Following the discussion, the jury were called back when the judge gave them a redirection by again reading out the presumption and explaining it in broadly similar terms as he had done before. The jury retired again and still could not reach a verdict after five hours. They eventually returned their verdict some time the next day.

5. It is necessary to refer to the relevant passages to see how the deputy judge dealt with the question of possession. At p.4 O-Q of the summing up, he said :-

"I think you will all realise now after hearing the evidence and the final addresses that the only real dispute in this case is whether the accused was actually in possession of the dangerous drug."

Having identified the issue in the trial, he went on at p.5 E-J :

"Now, as far as possession is concerned, the prosecution has to prove that the accused knowingly had a dangerous drug in his physical and actual custody and he intended to exercise control over it as and when required. He did not have to know the actual nature of the drug or even its quantity; for instance, if he thought it was heroin or cannabis, he would still be in possession of the 'Ice'. However, the accused would not be in possession of the dangerous drug if he did not know that he had it in his possession. Also it would not be in his possession if he believed the substance was a wholly different nature to that which in fact it was, such as sugar."

The judge then dealt with the presumption from p.5 K-U and p.6 A-H :

" Now, as you are aware, it is the prosecution's case that the accused was carrying the beige-coloured bag, Exhibit P1, and that the dangerous drug was found inside that bag. In the Dangerous Drugs Ordinance, there is a legal presumption which covers a situation such as this. This presumption is that, 'Any person who is proved to have had in his possession anything containing or supporting a dangerous drug, shall until the contrary is proved, be presumed to have such drug in his possession.

Whilst this is a legal presumption, it is almost a matter of common-sense. If a person is found in possession of a bag containing a dangerous drug, there is surely a strong inference that he was also in possession of the dangerous drug. At the very least, even if there were no presumption, such a person would have some explaining to do. However, the effect of this presumption is that if the prosecution satisfies you so that you are sure that the accused was in possession of the beige-coloured bag in which the drug was found, the burden then shifts to the accused to prove on the balance of probabilities, that is, more likely than not, that the drug inside the bag was not in his possession, so that standard of course is not as high as the burden on the prosecution to prove the case beyond reasonable doubt.

Now if you find that on all the evidence that he has not succeeded in proving that, then having found so that you were sure he was in possession of the bag, then you must find him to be in possession of the drug in the bag. Of course it is the defence case that the accused was never in possession of the beige-coloured bag, and accordingly that the presumption just does not arise."

6. This direction was substantially repeated to the jury by the judge in his redirection. Reading these passages, it does seem to me that the direction is not as clear as it should be expected. I agree with Mr McNamara that there was a possibility that the jury could have been confused and misunderstood the real meaning of the direction in view of the unusual length of time they had taken to reach their verdict in what was a comparatively simple case. The jury might have been confused or misunderstood that the presumption applied to both possession and knowledge although that should not be the case as the judge had directed the jury earlier at p.5 E-F :

"Now as far as possession is concerned, the prosecution has to prove that the accused knowingly had a dangerous drug in his physical and actual custody................."

At H-I :

"However, the accused would not be in possession of the dangerous drug if he did not know that he had it in his possession."

7. The deputy judge then went on to deal with the presumption which only applies to possession. It was there the confusion and misunderstanding were likely to arise. If the deputy judge had made clear to the jury that once they were satisfied so that they were sure that the applicant had the beige paper bag, the law says that he was also in possession of what was found inside the beige paper bag i.e. the 'Ice'. He should then directed the jury that they could only find the applicant guilty if they were sure from the evidence before them that the applicant knew that what was found inside the beige paper bag was dangerous drug. This would have avoided the confusion and misunderstanding that Mr McNamara alleged.

8. 'Possession' is not a difficult term or concept to understand or explain. It does not require any specific words or form as long as it is put in plain and simple language that juries can readily understand. In my view, the deputy judge's direction on this aspect is less than satisfactory and amounts to a material irregularity.

9. Notwithstanding the material irregularity, there is, in my view, ample evidence to prove both possession and knowledge that a reasonable jury, properly directed, would inevitably convict. I would grant leave to appeal. As no miscarriage of justice has actually occurred, I would apply the proviso under s. 83(1) of the Criminal Procedure Ordinance, Cap. 221 to dismiss the appeal.

Keith JA :

The issues in the case

10. There were three issues in the case which the jury had to decide. The first was whether the bag in which the drugs were found had been in the physical possession of the Applicant. If the jury was satisfied that the bag had been in the physical possession of the Applicant, the second issue was whether the Applicant had known that the bag contained drugs. Since it was not disputed that the bag had in fact contained drugs, the burden of proof was on the Applicant to show, on a balance of probabilities, that he did not know that the bag contained drugs. That was the effect of section 47(1)(a) of the Dangerous Drugs Ordinance (Cap. 134) which provides :

"Any person who is proved to have had in his physical possession .... anything containing .... a dangerous drug ..., shall, until the contrary is proved, be presumed to have had such drug in his possession."

Since knowledge is an ingredient of possession, a presumption that the Applicant had drugs in his possession amounted to a presumption that he knew that the bag contained drugs. If the jury was satisfied that the Applicant had known that the bag contained drugs, the third issue was whether he had had them in his possession for the purposes of trafficking in them.

The judge's summing-up

11. It is in relation to the second question - whether the Applicant had known that the bag contained drugs - that the judge's summing-up is criticised. Since knowledge is an ingredient of possession, the judge correctly dealt with the question of knowledge in the context of possession. He said :

"Now, as far as possession is concerned, the prosecution has to prove that the accused knowingly had a dangerous drug in his physical and actual custody and he intended to exercise control over it as and when required. He did not have to know the actual nature of the drug or even its quantity; for instance, if he thought it was heroin or cannabis, he would still be in possession of the 'Ice'. However, the accused would not be in possession of the dangerous drug if he did not know that he had it in his possession. Also it would not be in his possession if he believed the substance was a wholly different nature to that which in fact it was, such as sugar."

No criticism can be made of that direction.

12. The judge then went on to deal with the effect of the statutory presumption. He introduced what he had to say on the topic in this way :

"Now, as you are aware, it is the prosecution's case that the accused was carrying the beige-coloured bag ...., and that the dangerous drug was found inside that bag. In the Dangerous Drugs Ordinance, there is a legal presumption which covers a situation such as this. This presumption is that, 'Any person who is proved to have had in his possession anything containing or supporting a dangerous drug, shall until the contrary is proved, be presumed to have such drug in his possession'."

It is what he went on to say that has given rise to the problem in this case :

"Whilst this is a legal presumption, it is almost a matter of common-sense. If a person is found in possession of a bag containing a dangerous drug, there is surely a strong inference that he was also in possession of the dangerous drug. At the very least, even if there was no presumption, such a person would have some explaining to do. However, the effect of this presumption is that if the prosecution satisfies you so that you are sure that the accused was in possession of the beige-coloured bag in which the drug was found, the burden then shifts to the accused to prove on the balance of probabilities, that is, more likely than not, that the drug inside the bag was not in his possession, so that standard of course is not as high as the burden on the prosecution to prove the case beyond reasonable doubt." (Emphasis supplied)

13. In my view, this explanation of the presumption was likely to confuse the jury. The jury was being told that if the Applicant was in possession of the bag, he was presumed to possess its contents. But the judge did not tell the jury what the Applicant had to prove in order to rebut that presumption. What he had to prove was that he did not know that the bag contained drugs. That is because knowledge is an ingredient of possession. That problem would have been avoided if the judge had used the words "he did not know that the bag contained drugs" instead of the words which I have emphasised. Indeed, by saying that the matter was almost a matter of common-sense, the judge was in effect telling the jury that the possession of a bag amounted to possession of its contents. That made it all the more important for what the Applicant had to prove in order to rebut the presumption to be spelled out to the jury.

The jury's confusion

14. We now know that the jury was confused by this direction. About 11/2 hours after the jury had retired to consider its verdict, it sent a question to the judge. The material part of its question read :

"[The judge] described a part of the law relating to 'possession'. 'If a suspect physically has dangerous drugs then the burden of proof shifts to the defence to prove that he was not in possession' (or similar). We did not fully understand this, and request a repetition and clarification of this advice."

The response which the judge should have given to the jury was on the following lines :

"You have to decide whether the Applicant was in possession of the drugs. He will only have been in possession of the drugs if he had physical possession of the bag and knew that the bag contained drugs. You should therefore first decide whether he was in physical possession of the bag. If you are sure that he picked the bag up and that it was therefore in his physical possession, you must then decide whether he knew that it contained drugs. It is not for the prosecution to prove that he knew that it contained drugs. It is for the Applicant to show that it is more likely than not that he did not know that the bag contained drugs."

The judge's attempt to dispel the confusion

15. A direction along these lines was discussed by counsel and the judge in the absence of the jury, but unfortunately the direction which the judge gave to the jury did not remove the confusion which his original direction had created. What he said was :

".... the crucial matter in this case is, was or was not the accused actually in possession of the bag containing the dangerous drug? Now, if you're not satisfied beyond reasonable doubt of that, the presumption doesn't even arise, so that's the most important matter and to decide that, of course, you have to consider all the evidence in this case including the records of interview."

No complaint can be made of that, nor of the fact that the judge went on to deal with what the position would be if the jury was sure that the Applicant had been in physical possession of the bag. He read to the jury again the statutory presumption, but then added the following :

"So in this case it's a paper bag. If the drugs are there, the person holding the bag is presumed to have had the drugs inside it in his possession, and it's possession, then the onus is on that person to - how shall I put it - a burden shifts on that person, and that person has to prove on what is called the balance of probabilities that in fact he didn't have possession of it. For instance, it could be evidence that he hadn't opened the bag, he'd only just received it, he just found it, or whatever, or it could possibly be that he thought it was sugar or something like that." (Emphasis supplied)

16. The criticism of this passage is the same as the criticism of his original summing-up. The judge did not tell the jury that what the Applicant had to prove in order to rebut the presumption was that he had not known that the bag contained drugs. That had to be spelled out. It is true that the judge referred to the possibility of the Applicant thinking that "it was sugar or something like that", but in order for the jury to understand what the relevance of that possibility might be, the judge had to have said that the Applicant would not in law have been in possession of the contents of the bag if he had not known that what the bag contained was drugs. Again, the problem would have been avoided if the judge had used the words "he didn't know that the bag contained drugs" instead of the words which I have emphasised.

17. If the jury had been confused by the original direction (and it had been because it said so), the jury would still have been confused by the subsequent direction (because that direction was, broadly speaking, couched in the same language as the original direction and was subject to the same defects). Indeed, the jury's confusion is borne out by the length of time which it took to return a verdict in what should have been a relatively straightforward case, and a verdict by a bare majority of 5:2 at that.

18. After explaining the standard of proof when the burden of proving a fact is on the defence, the judge said :

"So getting back to what I've already said; (1) if you were satisfied beyond reasonable doubt that he was in possession of the bag, then under the law you would also have to find that he was in possession of the dangerous drug, but (2) I should remind you of course that in this case, the defence case is that the accused was never in possession of the paper bag at all, and that's why of course there's been no evidence tendered to try and rebut any presumption because as far as the defence is concerned, the presumption just does not arise."

I have two comments to make on this passage, and I have added nos. (1) and (2) to identify the two separate points made by the judge.

19. As for point (1), the judge failed to add words to the effect "unless the contrary is proved". I do not suppose that the jury would have forgotten that the presumption was a rebuttable one, but it is unfortunate that the judge there used language which suggested that the presumption was irrebuttable. As for point (2), what the judge said was quite correct, but it may have left the jury with the impression that the only thing which it had to decide was whether the Applicant had been in physical possession of the bag, because the defence was simply that he had never picked up the bag. Since the jury had also to be satisfied that the Applicant had known that the bag contained drugs - whether by operation of a statutory presumption which had not been rebutted or otherwise - that had been an issue which the jury had had to address, whether or not the defence made knowledge part of its case.

The Applicant's addiction to drugs

20. In the course of the trial, the defence brought out the fact that the Applicant was a drug addict. We were told that the defence did that in order to explain why the Applicant had been in the area in which he was arrested. In the course of his summing-up, the judge said :

".... it was part of the defence case that the accused was a drug addict. Normally a jury does not hear if an accused has any previous convictions or that he is a drug addict, but it can happen, and it has here. You must not however assume that the accused is guilty simply because he apparently has a previous conviction or that he is or was a drug addict. These matters are not relevant at all to the likelihood of him having committed the offence, and you must put them out of your minds when you are considering the guilt or otherwise of the accused."

One can see what the judge was getting at, namely that the fact that the Applicant had a history of drug abuse was irrelevant to his propensity to commit the offence with which he was charged. But leaving propensity aside, it was the defence which was relying on the fact that he was a drug addict to explain the Applicant's presence in Java Road, North Point, at the time, and therefore the judge should not have told the jury to put what it knew about his background out of their minds, without at the same time explaining for what the jury could use its knowledge of the Applicant's background.

The application of the proviso

21. The only remaining question is whether, despite the defects in the summing-up and the subsequent attempts to clarify the jury's manifest confusion, it is appropriate for the court to apply the proviso to section 83(1) of the Criminal Procedure Ordinance (Cap. 221). The proviso represents an exceptional reserve power which enables the court to uphold a conviction, despite a material irregularity in the course of the trial or some defect in the summing-up which may have resulted in some unfairness to the defendant. Since the conviction is nevertheless to stand, the proviso is a reserve power which should be exercised sparingly and with great circumspection. Thus, when dealing with the statutory provision in England on which section 83(1) was based - namely section 2(1) of the Criminal Appeal Act 1968 - Viscount Dilhorne said in Stafford v. Director of Public Prosecutions [1974] AC 878 at p. 893G :

"It is well settled that the Court of Appeal should only apply the proviso to section 2(1) if it is of the opinion that, if the jury had been properly directed, it would inevitably have come to the same conclusion." (Emphasis supplied)

22. The Applicant did not give evidence at his trial, but his case was based on what he had said to the police when he had been interviewed. He had said that he had been offered $2,000.00 to collect a paper bag from a rubbish bin outside a building in Java Road, North Point, and to deliver it to a shopping centre in Kowloon. In his first interview, he had claimed that he had not been told what the bag contained (though he had thought it very likely that it contained drugs), but in a subsequent interview he had admitted that he had been asked if he wanted "to make some money by helping other people to drag dangerous drugs", and that he had agreed "to drag dangerous drugs for other people". He had received a down-payment of $1,000.00 for making the delivery, but he had claimed that he had not intended to collect and deliver the bag at all. In the language of Mr John McNamara for the Applicant (who did not represent him at his trial), the Applicant had been intending to "rip" his paymasters off. He therefore had not collected the bag at all. Thus, the officer (DPC 51063) who claimed at the Applicant's trial to have seen the Applicant take the bag out of the rubbish bin, and the officer (DPC 46279) who claimed at the Applicant's trial to have seen the Applicant carrying the bag at the time when he was intercepted by DPC 51063, were alleged not to have told the truth.

23. I have no doubt that, on the issue on which the summing-up was defective, namely whether or not the Applicant had known that the bag which he was said to have picked up contained drugs, the jury would inevitably have found that he had known that the bag contained drugs if it had been properly directed on the issue. Mr McNamara did not contend otherwise. There are two reasons for that conclusion. First, this issue was one on which the burden of proof was on the Applicant. Since he did not give evidence, it would have been extremely difficult for him to discharge that burden. Secondly, the cross-examination of the Applicant's counsel shows that although the Applicant disputed the accuracy of the records of his second and third police interviews, he did not dispute the accuracy of the first interview in which he had admitted that he had thought it very likely that the bag contained drugs. Indeed, in his closing speech, the Applicant's counsel did not invite the jury to consider whether the Applicant had not known what had been in the bag. What he asked the jury to consider carefully was whether the Applicant had picked up the bag before the police intercepted him. Thus, it was never part of the Applicant's case that he had not known that the bag which he was said to have picked up contained drugs.

24. It is necessary, therefore, to look carefully at the issue which was the real issue in the trial, namely whether the bag in which the drugs had been found had been in the physical possession of the Applicant. There was no doubt that there was ample evidence on which it had been open to the jury to conclude that the bag had been in his physical possession. After all, one police officer claimed to have seen the Applicant retrieve it from the rubbish bin, and another police officer claimed to have seen the Applicant with the bag before he was intercepted, and the Applicant had elected not to give evidence to the contrary. But the critical question is whether the jury's verdict of guilty inevitably meant that the jury must have accepted the evidence that the Applicant had retrieved the bag from the rubbish bin.

25. I do not think that the jury's verdict of guilty inevitably meant that the jury had been sure that the Applicant had retrieved the bag from the rubbish bin. I cannot discount the possibility that the jury convicted the Applicant on the basis that (a) it was satisfied that he had known that the bag contained drugs, and (b) the confusing nature of the summing-up led it to believe that it was being directed that the Applicant's knowledge that the bag contained drugs amounted in law to his possession of those drugs. If that was what they had thought the law was, there would have been no need for them to come to a conclusion as to whether the Applicant had retrieved the bag from the rubbish bin.

26. I appreciate that a literal reading of the judge's directions shows that the judge stressed the need for the jury to be sure that the Applicant had had the bag in his physical possession. Thus, at one stage, he said :

"Now, if you find that on all the evidence that he has not succeeded in proving that [i.e. 'that the drug inside the bag was not in his possession'], then having found so that you were sure he was in possession of the bag, then you must find him to be in possession of the drug in the bag. Of course it is the defence case that the accused was never in possession of the beige-coloured bag, and accordingly that the presumption just does not arise."

But I fear that the direction in the second sentence in this passage could well have been lost on the jury in view of those aspects of the judge's directions which were confusing. Accordingly, I do not think that the proviso can be applied.

27. A final question remains. Let us assume that, as a result of the confusion, the jury did not address the question whether the Applicant had retrieved the bag from the rubbish bin. Would the Jury inevitably have come to that conclusion if it had addressed that question? Not to put too fine a point on it, would the jury inevitably have concluded that the police officers were telling the truth? For my part, I cannot be sure that the jury would have believed them. Without having seen the police officers give evidence, I cannot tell what the jury is likely to have made of them. Some of the jurors might have been persuaded that it was possible that the police had intercepted the applicant prematurely, and had then tried to cover that up by claiming that he had retrieved the bag by the time he was intercepted. After all, what we do know is that two members of the jury had sufficient doubts about the case to dissent from the view of the majority. Since I cannot be sure that the jury would inevitably have concluded that the applicant had retrieved the bag if it had addressed that issue, I cannot say that this is a case for the application of the proviso.

Conclusion

28. For these reasons, I would have granted the Applicant leave to appeal against his conviction, I would have allowed his appeal, and I would have set aside his conviction. Mr McNamara accepted that if that was the course which was taken, he could not argue that this was not an appropriate case for the re-trial of the Applicant. Accordingly, I would have ordered that the Applicant be re-tried. However, since Wong JA and Mayo V-P take a different view as to the outcome of this application for leave to appeal, the order of the court has to be the order which they propose.

Mayo VP :

29. I have had the advantage of reading both these judgments in draft. I have respectfully come to the conclusion that for the reasons given by Wong JA, this is an appropriate case for the application of the proviso. This being the case this application for leave to appeal is allowed. However treating the hearing of the application as the appeal it is by a majority dismissed.