HKSAR v. LAM KING YIN

CAC C 246/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 246 OF 2013

(ON APPEAL FROM HCCC NO. 367 OF 2012)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1. Perfected grounds of appeal were filed in this case on 9 December 2013 and, in view of the unassailable merit of the single ground of appeal, we directed an expedited hearing of the application for leave.

2. On 10 July 2013, the applicant was convicted after trial before Deputy High Court Judge Geiser and a jury upon an indictment containing one count of trafficking in a dangerous drug, namely 0.21 kg of ketamine.  He was sentenced to 8 years’ imprisonment.

3. On the evening of 1 June 2012, the applicant was sitting in the rear passenger seat of a taxi and had a package by his side.  When the police approached him, he attempted to throw the packet out of the door.  The packet contained the drugs in question.

4. His testimony at trial was that he was merely doing delivery work and had no idea that the package contained drugs.  He threw the packet out of the taxi window, he said, because he was suddenly approached by two men, whom he did not know were policemen; one of them opened the passenger door and the applicant threw the packet at him in fright.

5. So the only issue in the case was whether the applicant knew that the packet contained dangerous drugs.

6. On this central issue the judge first gave contradictory directions and then, in response to a specific and precisely phrased question from the jury, provided a fundamentally erroneous direction.

7. He told the jury on a number of occasions that the applicant did not have to prove anything.  Yet he also told them that:

“ ... as a matter of law, any person who is proved to have had in his physical possession anything containing a dangerous drug – in this case, the tea packet – then until the contrary is proved, on the balance of probabilities, that person is presumed to have had the drugs in his possession and known of the nature of the drugs.”

8. This must have confused the jury and at the end of the summing-up, counsel for the prosecution said that: “ ... with respect ... I’m not at all sure that the jury would understand how they were to apply the presumptions contained in section 47 of the [Dangerous Drugs Ordinance].  Your lordship on a number of occasions has said that the defendant doesn’t have to prove anything, and that’s right, but if he is proven to be in physical possession of the bag, well, then presumptions ... evidentiary presumptions arise against him and you haven’t made it, with respect, clear to the jury ... that there is an onus upon the defendant to satisfy them on the balance that first of all he either wasn’t in possession of the drugs or he did know that what was contained in the tea bag was dangerous drugs.”

9. The judge said in reply: “I disagree with you.  I think that I’ve adequately explained it to them.”

10. Counsel was correct that the jury must have been confused, correct that there was an evidentiary onus on the defendant in such a situation but not correct that there was a persuasive onus upon him to satisfy the jury that he did not know that what was contained in the tea bag was dangerous drugs.

11. The fact of the jury’s confusion was brought to light by a question they asked of the court, which, with respect, was as precise a question as could be put:

“With reference to the three stages of prosecution, if stage one, ie dangerous drug was under the possession of the defendant, is satisfied, who is responsible to prove stage two, ie that the defendant knew the item he carried contained dangerous drug:

(a) is it the responsibility of the prosecution to prove beyond reasonable doubt that he knew the nature of the item; or

(b) according to section 47, anyone who is in possession of dangerous drug is presumed to know its nature unless proved to the contrary.”

12. With the concurrence of counsel for the prosecution but against the submissions of counsel for the applicant who specifically drew the attention of the judge to a correct distillation of the current state of the law in Archbold Hong Kong, the judge told the jury this:

“So in relation to this case, if you are satisfied that the defendant was indeed in possession of the green tea packet which contained drugs, if you are satisfied about that, then the law presumes that he is in possession of the dangerous drug and that he knew the nature of it, ie that it was ketamine, unless he can satisfy you not beyond reasonable doubt but to a lower standard – he can satisfy you on the balance of probabilities, and that means that he satisfies you to the extent that it is more likely than not that he did not know.

That really is the explanation for, I think, your first question. So I will repeat that. If you are satisfied that he was in possession of the green tea packet which contained the drugs, he is presumed to have had the drug in his possession and to have known the nature of the drug unless he can establish to you that it is more likely than not that he did not know.

Well, you have heard his evidence.  He has given evidence, and his evidence is that he did not know what was in that bag, and that is a matter for you to consider.  Do you think that it is more likely than not that he did not know what was in the bag?”

13. In that direction the judge fundamentally erred. A momentary study of the key case to which the passage in Archbold Hong Kong referred would have prevented the error.  The correct application of the presumption under section 47 that an accused knew that an item in a container intentionally possessed by him is a dangerous drug was established with crystal clarity by the important judgment of Sir Anthony Mason NPJ in HKSAR v Hung Chun Wa and another (2006) 9 HKCFAR 614, delivered six years ago; and the answer there provided was that the presumption is to be treated as creating an evidential onus only, not a persuasive one.

14. It is clear that the applicant discharged the evidential onus but that the judge directed the jury that the applicant had a persuasive onus.  That fundamental misdirection went to the heart of the defence and, as the respondent properly concedes, the conviction must therefore be quashed.

15. Accordingly we grant the applicant leave to appeal the conviction, we treat the hearing of the application as the appeal, allow the appeal and we quash the conviction.

16. There is an application by the respondent that the applicant be retried upon a fresh indictment for the same alleged offence.  Mr Egan on behalf of the applicant opposes the application, suggesting that the fault for what transpires lay with the prosecutor and that given that the sole issue was that of knowledge the fact of the question raised by the jury and the fact that there was a verdict by a mere majority of 5:2 would render a retrial a deprivation of the applicant’s chance, a realistic chance, of acquittal, and he says that it would in the circumstances be unjust to order a retrial.  The fact that the prosecutor encouraged the error is a factor to be taken into account but there are other factors in the balance.  It seems that the judge was imbued independently with the error which has caused this conviction to be quashed and in any event the offence is a serious one and the evidence is on its face cogent and the length of the trial short.  In those circumstances, we consider that a retrial is warranted and we so direct.  We direct that the retrial should be listed so that it will be heard within 3 months from today.  The applicant is remanded in custody until determination of his trial or further order.