THE QUEEN v. YUEN CHI KWONG AND OTHERS

IN THE COURT OF APPEAL

No. 636 of 1987

(Criminal)

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J U D G M E N T

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Hunter, J.A. :

1. On 14th December 1987 Yuen Chi Kwong, Siu Chun Kit and So Wai Ming respectively the first, second and third applicants, were convicted after trial before Deputy Judge Bokhary on an indictment containing two counts. The first count charged possession of dangerous drugs for the purposes of trafficking on 19th July 1987 in the carpark of the Government Offices Building, Tung Yan Street, Kwun Tong. The quantities specified in that indictment was 2,240.68 grammes of a mixture containing 199.08 grammes of salts of esters of morphine. That count concerned only the first and second applicants. They were both found guilty on it. The second count concerned all the applicants, and charged possession of dangerous drugs for the purposes of trafficking on the same day at the first floor, 101, Sam Tung Uk Resite Village, Tsuen Wan. The quantity specified in the indictment on that occasion is no less than 8,742.51 grammes of a mixture containing 791.05 grammes of salts of esters of morphine.

2. In essence the prosecution case as presented ran like this. On the morning of 19th July 1987, at six o'clock, a car driven by the first applicant and containing the second applicant as a passenger, stopped outside this address in the Resite Village which I shall call the premises. The passenger, the second applicant, got out, carrying with him a grey carrying bag, entered the premises with keys that he had in his possession. A few minutes later he came out, still carrying the bag, put the bag back into the car and got back into the car himself. At about 7 a.m. that same morning, the car entered the carpark specified in the first count and parked there. The third applicant was there to see it arrive and appeared to give a nod or sign to the car as it entered. The second applicant then spoke to the third applicant. The second applicant went back to the car to take out an envelope. The second and third applicants went off together to a cafe. It is at that point that the observing officers moved in. The second and third applicants were arrested in the cafe and the first applicant in the motorcar. The second applicant then took the investigators to the premises. In the car and the cafe together was found the quantity of drugs specified in count one. In the premises was found the quantity of drugs specified in count two.

3. Now as far as these applications are concerned, the first applicant complains that the trial judge should have accepted a submission made by counsel on his behalf at the close of the prosecution case, of no case to answer on the second count i.e. possession of dangerous drugs at the premises. The submission then made by Mr McGuinniety on his behalf was that there was no sufficient evidence led that the first applicant was in possession of the drugs in the premises. The answer suggested by Mr Bruce before this court is that there was "some evidence" of possession sufficient to go to the jury and he uses the phrase "some evidence" in the same way as Lord Diplock does in the case in Ho Chow Tow v the Public Prosecutor^(l).

4. There is no issue as to the evidence that was then before court. It falls into three categoies. First, there was finger-print evidence. Prints coming from the first applicant were found in the premises; in one case on the table and the other case on a Mania envelope which had apparently been used for the packaging of the drug. Secondly, when asked immediately after the discovery of these drugs in the premises by the customs officers to comment upon the premises, the applicant said that he has never been there, that he knew nothing about the premises at all. It would seem that these answers put together with his fingerprints showed that he was lying and that this was a lie to cover up his involvement in this matter. The third piece of evidence was the statement that he gave in writing immediately following his arrest. In the course of that statement he described the events in the morning, how he went with the second defendant to this site, how this second defendant went in and came out with the travelling bag. "A while later, he returned with the bag mentioned just then got into the vehicle, and told me that there were five portions of stuff in the bag. I then immediately pulled the vehicle out. I do not know from where he took the stuff out. I only know that everytime I did (something with) those stuff, I would get a hundred dollars for every portion. He and I shared it equally. Each of us got fifty dollars". Later he explained "a portion of stuff" is one pound of the material and the "stuff" stands for "white powder". When asked about the money "who gave you the money? How was it given to you?" His answer was "once every two or three days. Every time it was given to me via the second defendant".

5. Now in the court below and in answer to the submission then made by Mr McGuinniety, prosecuting counsel made this submission in relation to that statement. Indeed he was basing his submission that there was sufficient evidence before the court upon the hypothesis that a joint enterprise between the first and second defendants had been made out. What he is recorded as saying is this : "He is making an admission in that particular statement to have been involved in the sale of the articles from Room 101", (there can be no argument about that), "and, my Lord, which in itself is a clear admission of an intention to be in possession or custody and control of the property in that particular room". Put in other way, it was being suggested that if there was a joint interest in the property in the vehicle, it might be argued from the statement that that extended to the property in the premises.

6. That suggestion has been totally disclaimed by Mr Bruce, for the prosecution, before this court. He conceded that the statement itself cannot legitimately be taken further, than an admission that this applicant was concerned jointly with the second defendant in the sale and distribution of the drug which emanated from the premises. So that we have this situation. This applicant admits being involved in the distribution of drugs from the premises, and that it can reasonably be inferred from his fingerprints that he in fact been to these premises and that he lied about that fact. But is that sufficient? Does the fact that he was distributing drugs which came from the premises, and that once or perhaps twice had been there put him in possession of the drugs which were at these premises? In our judgment the answer that must be "no", and that there was no sufficient evidence led before the court to show that he was in fact in possession or control of the drugs charged in count two of the indictment.

7. In those circumstances we think that the objection taken by the first applicant before this court is well founded. His application should have been acceded to in the court below. It follows that in his case we allow his application; treat it as the hearing of his appeal; and quash his conviction on the second count in the indictment.

8. We now turn to the application which is made on behalf of the third applicant. Here the issue is essentially one of possession. One has to start here by looking at section 47 of the Dangerous Drugs Ordinance. Section 47(1) reads :

"Any person who is proved to have had in his possession or custody or under his control, .... (c) any place or premises in which a dangerous drug is found .... shall unless the contrary is proved, be presumed to have had such drug in his possession".

So the starting point of the presumption under section 47 is proof that the person has had in his possession, custody or under his control, a place, and that has to be proved beyond reasonable doubt. In this case the prosecution were relying principally or indeed entirely in this respect, upon proof that this applicant was the tenant of the premises. That fact does not seem to have been in issue. But in order to meet that the inference of control which stems from that fact, this applicant asserted that he had sublet the whole of the premises to the first applicant; that he left them completely, for partly sentimental and partly financial reasons; and that he had not had anything to do with them after that date.

9. This deference was left to the jury at an early stage of the summing up on page 11 where the judge said :

"The 3rd defendant also went into the witness-box. Consider everything that he said. He has no previous convictions; and that is primarily relevant to the weight you attach to his word. He denied having any involvement with dangerous drugs in the flat or anywhere else.

He said that he was at the cafe only to meet the first defendant in order to collect from him the rent which the first defendant owed him as his sub-tenant of the first floor flat".

So that they are asked to consider that primarily at that stage in the context of the reason why he was in the cafe. This he said was not because of drugs at all; it was a rent collecting exercise; he was there to collect the rent from the first defendant which he owed him on his sub-tenancy.

10. Later when considering the evidence in relation to this count, the second count, in relation to this defendant, at page 17 of the summing up, one finds this:

"As to the third defendant who faces the second count only, he was the tenant of the flat in which the dangerous drugs the subject matter of the second count were found".

The judge then refers to the evidence of his activities in the carpark, and the direction then goes on :-

"If you are satisfied beyond reasonable doubt that the third defendant was the tenant to the flat, that dangerous drugs had been collected from the flat, and that knowing this he waited for the car carrying the dangerous drugs to arrive at the Government Offices Carpark and then went off with someone who was carrying some of those drugs, then you are entitled to be satisfied beyond reasonable doubt that he was in possession of the dangerous drugs in the flat".

It is to be observed that in both places the judge refers to the fact that this defendant "was" the tenant of the flat without qualification. But in order to start to satisfy the onus which is upon the prosecution under section 47(1) and start this presumption operating, the jury had to be satisfied not only that the defendant was the tenant of the flat and therefore in a position in which he might exercise right of possession or control, but that he was also in that position upon the date of charge in count two. In other words the jury had to be satisfied that there could not be any truth at all in the suggested sub-tenancy which he was asserting in the first defendant. Unhappily in this summing up, this crucial issue, the issue arising on possession was never left fairly and clearly to the jury in its proper form. These passages which I have read seem to pre-suppose that being tenant he was therefore in possession, and most of the rest of the direction is directed to knowledge. This, with the greatest respect to the trial judge, is starting at the wrong point. The very first question this jury had to consider was yes or no, was he in fact in possession or control on 19th July. Unhappily that question was never really left to them accurately or fairly or indeed at all.

11. In those circumstances it seems to us that the conviction which is based upon a defect in the summing up of this magnitude cannot be safe. Accordingly we are constrained to conclude that this application likewise must be acceded to. The hearing is treated as the hearing of the appeal, and this applicant's conviction on this count is likewise quashed.

12. Having now heard the submissions of counsel on both sides we think it appropriate in this case to order a re-trial under section 83E of the Criminal Procedure Ordinance and to direct that a new indictment be preferred under section 83F.

13. We will admit the third applicant to bail pending trial effectively on the same terms as he enjoyed previously. That is a cash surety of HK$100,000 and a recognisance by a surety in the like sum, but not in cash; on the same reporting terms; and on the surrender of any travel documents which he may still have in his possession. He may not leave Hong Kong.

14. We have now for consideration an application by Siu Chun Kit for leave to appeal against the sentences imposed upon him by Deputy Judge Bokhary. He was found guilty on two counts. The first, was a count of possession of dangerous drugs for the purposes of trafficking. The quantity involved on that count was 2,240.68 gramms of a mixture containing 199.08 grammes of salts of esters of morphine. The second count was in identical terms, the quantity in that case being 8,742.51 grammes of a mixture containing 791.05 grammes of salts of esters of morphine. On those two counts the judge imposed sentences of twelve years on count one and fifteen years on count two, both to run concurrently.

15. Mr Hingorani for the applicant has said everything could possibly have been said on his behalf, and we have given anxious consideration to his submissions. He conceded at the outset that sentences of this order for quantities of this size are not by any means unknown. He relies particularly upon the decision of this court given last week on application for review (review no 21 of 1987). We think it is right to make four points about that decision.

16. He founded upon a sentence of my Lord to this effect "had the offences been charged under section 7 as possessing a dangerous drug for the purposes of unlawful trafficking the appropriate sentences in the particular circumstance would have been in the region of twelve years on the basis of guideline laid down by this court". First, we note the emphasis in that case upon the "particular circumstances", because as is made clearer in the latter part of the decision the two persons in that case were losing a great deal by going to prison at all, and suffering a great deal of "self-induced punishment" as it was described. Secondly, the phrase "in the region of twelve years" is a plain reference to the topmost figure in the actual scale in R V Chan Chi Ming⁽²⁾. Since this was an application for review, the court may well have had a minimum figure in mind. Thirdly, this was an observation made on the way to the court's determination of an appropriate sentence for two counts of trafficking. But, and this is the last point, as the court there pointed out, there are many occasions where the distinction between possession and trafficking becomes blurred.

17. This is just such a case. The first count relates to 2,200-odd grammes loaded into a motorcar for distribution, until that distribution exercise was stopped. The second relates to the 8,742 grammes being kept in premises for future distribution. The degree of criminality in the circumstances of this case between someone who was guilty of possession and someone guilty of trafficking is indeed very fine indeed. Secondly, it seems to us that when imposing concurrent sentences for two closely connected offences like this, one should have regard to the total quantity involved. The total quantity of the mixture in this case is very close to 11,000 grammes. Thirdly, in any case of this nature, it is very difficult for a court to produce a precise balance or precise consistency. Any court looks with the up most anxiety at a sentence of this size upon a man of this age. But this was a very serious matter indeed. The quantity as we have indicated was considerable. The court has to do its best to assess the gravity of the offence and the impact on the offender. Having looked at the matter with the up most care, it seems to us impossible for this court to say that this sentence is manifestly wrong. Accordingly this application fails and must be dismissed.

(1) [1982] AC 152

(2) [1979] HKLR 491