THE QUEEN v. KU KAR KIT

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J U D G M E N T

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Cons, V.P., delivered the judgment of the Court:

1. KU Kar Kit, the Applicant in these proceedings, was convicted by a jury before Wong, J., of possession of dangerous drugs for the purposes of trafficking. The drugs in question were approximately 4.5 kilogrammes of a mixture containing salts of esters of morphine. He seeks leave now to appeal against that conviction.

2. The evidence against him was that a man was seen to enter a parked car of which the Defendant was the owner and, at the time, the driver. After a short conversation the car was driven off to come soon afterwards to a stop again. There the man, who had been completedly unencumbered by any form of package at the time that he entered the car, alighted, turned round and removed two plastic bags from the floor of the car in front of the front passenger's seat. The man was arrested as he walked away. The plastic bags were subsequently found to contain the amount of drugs we have just mentioned.

3. The Defendant gave evidence before the jury in an attempt to rebut the presumptions contained in Sections 46 and 47 of the Dangerous Drugs Ordinance. His evidence was, that he had no knowledge the contents of the bags; they did not belong to him but to another man who was a mutual friend of himself, and a third party to whom he had recently lent the car and by whom it had been returned that day; the bags had been left in the car while it was in the possession of the third party and all that the Defendant was doing on the day of his arrest was to allow that man to collect the two bags and, at the same time, to give him a lift to where he wanted to go. The explanation was obviously not accepted by the jury.

4. This was a simple case, but it does not necessarily follow, as the judge at one stage observed, that it was therefore an easy case. The jury indeed found difficulties. The first was quite irrelevant relating to the sentence which might be imposed upon the Defendant should they find him guilty and whether they could make any recommendations in that respect. The judge quite rightly told them that sentence was not a matter for their concern.

5. No complaint is made about that direction on his part, nor as to a subsequent direction when the jury came back for a second time, indicating that they were not then able to agree and were unlikely to do so even if given more time as they were split four against three.

6. The complaints that are made in support of this application arise from when the jury came back for a third time. The note which they sent first on that occasion reads:

"Is it possible to examine more closely the bags and drugs of that were exhibits? In particular, we would, if possible, like to see the drugs put inside the shopping bags as they would have been at the time of the incident It would assist us in deciding how likely it is that the defendant could really have been ignorant of the contents of the bags."

It is apparent from remarks later in the transcript that the jury had not been given the exhibits on their retirement as the judge had directed.

7. In order to understand the points raised on appeal we think it necessary to set out in full what the judge, after consultation with counsel, said to the jury in answer to their note:

"Members of the jury, I have considered and discussed your latest note with counsel and the answer I am going to give you is this. You will remember there was evidence, which was agreed, that there were two plastic bags in the car, you see, and each of the two pink plastic bags contained five packets of white substances which were found to be dangerous drug. The packets with the letter "A", the "A"s were all contained in one bag and then the packets with the letter "B" were contained in another bag. And you will recall that there was a smaller pink plastic bag which was put inside one of the two larger pink plastic bags. They were altogether three pink plastic bags."

8. We interpose here to say that the judge was in error when he spoke of "two larger pink plastic bags". In fact there was one large and two smaller bags. It has also been drawn to our attention that the judge did not specifically remind the jury that the smaller white bags of drugs, marked each with an "A" were in the pink plastic bag marked "A", together with the smaller pink bag marked "AA", while the white packets each of which is marked with a "B" were in a pink plastic bag which is marked with a "B". It is suggested that his failure to do, plus his mistake as to the pink bags, must have confused.the jury With respect, we feel that the common sense of the jury in the circumstances would not have allowed confusion to rein for any appreciable time at all.

9. We return to what the judge said:

"Now you also heard evidence from the accused himself, that when he saw these bags, two bags, in the car; in fact he said one was placed on top of the other upside-down, you see, and that was'' evidence given by the accused himself in the witness box.

Now you have the photographs. If you look at photograph 7. Now what I want to remind you is this. There is no evidence there is no evidence that the bags were in this condition when they were in the car. There is no evidence about that. Apparently this photograph was taken later in police station. So don't confuse this photograph with the condition of the bags when there were in the, car.

Well, you have got the exhibits. So you can try to put them inside the bags, if you like. It is entirely a matter for you."

The foreman thought that would be useful:

"My Lord, I think it would be very helpful to us if we could do that or if at least we could see the bags unfolded, because when we saw them as exhibits, they were folded up inside the polythene bags."

Defence counsel added:

"Perhaps members of the jury may wish to know, my Lord, that the drugs, the exhibits now produced in court, they include various other govenment laboratory plastic bags."

The judge agreed:

"Yes. So they would make them look more bulky." And to the jury:

"You also take that into consideration, I think."

10. The several grounds of appeal in substance, suggest that in one sense the judge did not go far enough, in that he did not point out to the jury "that there was no evidence that had been demonstrated at the trial of the arrangement of the drugs which were inside the bags when these items were seen by the Appellant in the car", but in another went too far in that he suggested to the jury that they could "conduct experiments and simulations with the said exhibits and/or with additional materials, namely sealed bags, which were not seized by the police officers at the time of the incident".

11. The first aspect has not been pursued by Mr. Buchanan who now appears for the Applicant, although not in the court below. In our view it would not have succeeded, for the judge drew the attention of the jury to such evidence as there was as to how the bags were placed in the car, that is the evidence of the Defendant himself, and he warned them against the possibility of their being misled by the evidence of the photographs. No more was necessary.

12. As to the second aspect, with respect, we see no substance in it. In our view the jury were, in the present circumstances, fully entitled to see for themselves how the plastic bags and the white bags related to each other. That was well within their province and in no way conflicts with the comments made in the two Commonwealth cases of R. v. McCrea (1969) 8 CRNS 179-185 and Kozul v. The Queen (1980-81) 147 CLR 221 to which our attention has been drawn.

13. For these reasons the application is refused.

14. As to sentence, it has been confirmed many times in this Court that in offences of this nature the principal consideration is the amount of drugs involved. As we mentioned earlier, on this occasion it was 4.5 kilogrammes. That is well above the top end of the scale in R. v. CHAN Chi Ming [1979] HKLR 49 and we see no reason to think that the sentence of 12 years passed was manifestly excessive. This application is also refused.