R. v. TSOI WAI MING

IN THE COURT OF APPEAL

1995, No. 33
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This case comes to us from a trial before Gall J and a jury in December last year. The applicant, a man in his late 20's, faced two counts.

2. Under the 1st count, he was charged that on February 22 last year, on board a van parked in a multi-storey car park in Kowloon, he unlawfully trafficked in dangerous drugs, namely 1,055.52 grammes of a mixture containing 882.58 grammes of salts of esters of morphine i.e. heroin.

3. The 2nd count was far less serious. Under it, the applicant was charged that on the following day, February 23 last year, in a flat in Hong Kong, he had in his possession dangerous drugs, namely 124.86 grammes of cannabis.

4. By its verdict delivered on December 15 last year, the jury convicted the applicant on both counts: unanimously of the heroin trafficking and by majority of six to one of the cannabis possession.

5. Passing sentence on the same day, the judge sentenced the applicant to a total of 21 years' imprisonment by way of a term of that duration for trafficking in the heroin and a concurrent term of 14 days for possessing the cannabis.

6. The applicant now seeks leave to appeal against his conviction on the heroin trafficking count.

7. Essentially, the complaint made on the applicant's behalf arises out what the judge said to the jury on that count when giving them further directions after they, having retired to consider their verdict, sent the judge a note which read:-

"Please further elaborate on the definition of the word 'possession'."

8. Before coming to the judge's response to that request, it is necessary to look at how the prosecution and the defence had each put its case.

9. That can be taken from the summing-up.

10. As to the prosecution's case, the judge said this:-

"Now what do the Crown say? The Crown say that a party of Customs officers went to Peninsula Carpark at about 3.30 in the afternoon on 22 February. There were a number of them. We don't know how many, but certainly there were three in the car that followed ER 3016 up to the 6th floor, there was a lady Customs officer on the ground floor. They saw the accused after 9 o'clock, come up in the car, in the van, and park it. One officer says he saw the accused leave the car, leave the van, and go towards the direction of the lifts, that he returned a short time later carrying a white bag which the officer identified as what we have been calling the 'BALLY' bag, that he unlocked the van, put it in, and that he then locked the van again and left going again towards the lift.

Now at this point the interesting matter raised by [defence counsel] - he said that the manner in which the accused carried the bag had not been raised - in fact he wasn't asked about it by anybody - and suggested that criminals may be able to be detected from the look on their face or the manner in which they walked. I wouldn't commend this test to you. In fact I would ask you to look carefully at the evidence and not take that sort of test into account.

The officer said that he left and went downstairs -- I am sorry, the accused left and went downstairs, and again the identity of the accused in the carpark hasn't been in issue. He, in answer to [counsel for the prosecution] said he was the only one other than his father who had the keys. He accepted he was driving the van on that day and was at the Peninsula Carpark. There was no suggestion anywhere in the evidence that the man who came back to the car, if the officer is accurate about that, was anyone else but the accused. So you are really faced with a question there, as [counsel for the prosecution] has said - you either believe the officer or you do not, and that is, I would suggest, one of the first decisions that you've got to make on the basis of all the evidence - do you believe the officer or not?

The evidence of the Crown was that the accused went downstairs and on his emergence from the lift was seen by the lady officer who was lying in wait downstairs and she then followed him to the game centre, to the herbal tea-shop, then back to the van where he was stopped, arrested, the van opened and the dangerous drugs in the 'BALLY' bag found by the Customs officers and taken out.

If you accept that evidence in the light of all that you have heard, if you are sure that the accused carried that bag back to the van, then he clearly had possession of the bag. If you are sure he had possession of the bag, the presumption would apply and he would be presumed to know the contents. You would then have to look to all that he has said and the evidence of the Crown generally to see whether it's more likely than not that he was unaware of the contents."

11. As to the defence case, supported by the applicant's own testimony and that of a witness called on his behalf - the judge said this:-

"... the defence case is that the defendant did not have the bag, that he did not leave the van in Peninsula Carpark and return to it with the bag. It is his case that he never had it in his possession, he never knew the contents of it, and if you have any doubt that he had possession or knew the contents, then you will acquit, and that places no obligation upon him to prove those matters."

12. Now we have to look at the further directions which the judge gave the jury on the trafficking count when responding to their request for elaboration on the definition of "possession".

13. This is what the judge said on that:-

"Now, in the first count, that is the count relating to the heroin, if you are sure that the accused either had the Bally bag in his hand and knew something was inside of it or knew the bag was in the vehicle and that something was inside of it, then he had possession of the contents of the bag, the drugs."

14. As to what follows from proof of possession, these are the directions which the judge had earlier given the jury:-

"... then the law says he is presumed to know that it was a dangerous drug, and he is presumed to know that unless he shows you on the balance of probabilities, unless he shows that it is more probable than not that he was ignorant that they were drugs."

15. That presumption would apply if the applicant was carrying the "Bally" bag. But it would not apply if he merely knew that bag was in the van and that there was something inside the bag.

16. That is so for these reasons. Section 47(1) of the Dangerous Drugs Ordinance, Cap. 134, used to read as follows:-

"Any person who is proved to have had in his physical possession-

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug;

(c) the keys of any motor vehicle containing a dangerous drug, shall, until the contrary is proved, be presumed to have had such drug in his possession."

17. But by the time of the trial, item (c) of that subsection had been repealed. So even if possession extended to mere knowledge that the bag was in the van and that there was something inside the bag, and even if leaving the jury that as an alternative basis of possession was not an unsafe or unsatisfactory departure from the prosecution's case, this problem remained. The jury were told without qualification that a presumption of knowledge followed from possession. In truth, however, that presumption would only follow from possession constituted by the actual carrying of the bag. There is a real danger, therefore, that the jury found facts which did not trigger that presumption but which they thought triggered it.

18. The misdirection was a material one. And this conviction, i.e. the one of heroin trafficking, can only be saved if the proviso can be applied. For the proviso to apply it is not good enough merely that a reasonable and properly directed jury could take the view that knowledge that the bag was in the vehicle and that there was something inside the bag meant that the applicant must have, in all the circumstances, known that the contents of the bag were dangerous drugs. The proviso can only apply if no reasonable and properly directed jury could fail to take that view. That is too strong a conclusion for us to reach on the evidence. So that the proviso cannot be applied.

19. And the result is this: the application for leave to appeal against the conviction on the heroin trafficking count is treated as the appeal itself; that appeal is allowed; and the conviction of heroin trafficking is quashed so that the sentence for the same is set aside.

[Retrial on the heroin trafficking count ordered.
Applicant remanded in custody pending retrial.]