CHING KWOK WING v. R.

IN THE COURT OF APPEAL

1994, No.4
(Criminal)

HEADNOTE

Although a judge is not expected to give the jury an erudite dissertation on the whole area of law relating to the offence on which an accused stands his trial, he is under a duty, however simple the case may be, to direct them as to the ingredients of the offence charged.

Where the count is one of trafficking in a dangerous drug and the prosecution rely on the accused's possession of a bag in which there is a quantity of dangerous drugs, it is incumbent on the judge to direct the jury as to the meaning of both possession and trafficking and to explain the effect of section 47 of the Dangerous drugs Ordinance (the presumption as to possession section).

Since the presumption as to trafficking has been repealed, where the narcotic quantity of the mixture is relied on to establish that the accused's possession of the drug was for the purpose of trafficking, the jury should be given some guidance as to the basis on which they may conclude that the accused was trafficking in the drug, not merely in possession of it for his own consumption.

IN THE COURT OF APPEAL

1994, No.4
(Criminal)

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J U D G M E N T

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Macdougall, V.-P.(giving the judgment of the Court):

1. The appellant was convicted after trial before Wong J. and a jury of trafficking in a dangerous drug, namely 243.37 grammes of a mixture containing 104.08 grammes of salts of esters of morphine. He now appeals against that conviction.

2. The evidence for the Prosecution was that shortly after midnight on 6th January 1993, a team of police officers on surveillance duty in Sai Yeung Choi Street North in Kowloon observed three men emerge from System One Motor Car Company. One of these three men, the appellant, was carrying a yellow plastic bag. The police intercepted the men and seized the yellow plastic bag from the appellant. Inside that bag they discovered two cartons containing a substance wrapped in nine polythene bags. On subsequent analysis the substance was found to be the drug in the quantity stated in the count on which the appellant was later convicted.

3. The appellant's defence was that the police had framed him by falsely alleging that he had been carrying the bag containing the drugs. He testified that he is a partner in the System One Motor Car Company and that in the early hours of 6th January 1993, he had been in the company premises with one of his partners, a Mr. Chan, and another friend, a Mr. Suen. The three men had spent the evening there watching television. Eventually, because of the lateness of the hour, Chan and Suen decided to leave. After they had left the premises they were questioned by the police. The appellant said that he saw this through the glass door at the entrance to the premises. Several police officers then entered the premises and stated that they wanted to carry out a search. The appellant, using foul language, protested that he was carrying on a legitimate business and that he had nothing to do with dangerous drugs. One of the officers, a constable Tsang, accused the appellant of being too cheeky, and in the company of another constable then left the premises while other officers carried out a search inside. Later Constable Tsang returned holding a yellow plastic bag and demanded to know to whom it belonged. The appellant denied that it was his. He said he had no idea as to what it contained. A heated argument then took place during which Constable Tsang told the appellant that he was too cheeky and that the bag of drugs would be planted on him. The appellant was then handcuffed.

4. A Mr. Lee, a vehicle repairer and a friend of the appellant, testified that he had been repairing a car outside the company premises when he saw two men, neither of whom was the appellant, emerge from the office of the company. These men were questioned by the police and taken to the other side of the road. Later, he saw two other men, who were holding torches, enter the alleyway adjacent to the company office. When they returned about 10 minutes later one of them was holding a yellow plastic bag. They told him to mind his own business otherwise something would be planted on him. The two men then entered the company office. Soon afterwards Mr. Lee heard the sound of an argument coming from inside the office.

5. Another witness for the defence, a Mr. Chan, who was employed as a part-time cleaner at the Royal Theatre, testified that he had entered the lane way to dispose of some rubbish. He noticed two men there holding torches and searching for something. On becoming aware of Mr. Chan's presence, one of the men came up to him and asked him what he was doing there so late at night. Mr. Chan then heard the other men say, "I've found it." He noticed that the man was holding a torch in one hand and a plastic bag in the other. Mr. Chan was then told to leave.

6. In his directions to the jury the judge said:

"In the light of the evidence that you have heard and the defence of the accused, it is not necessary for me to direct you on what is possession and what is trafficking in law because, if I do so, it would tend more to confuse you rather than to assist. The only issue which is really an issue of fact for you to decide is whether the accused was in physical possession of the yellow Welcome shopping bag and the drugs in that bag, and that is was he holding it in his hand outside the entrance of the System One Motor Car Company as the police witnesses have testified.

If at the end of the day you are satisfied beyond reasonable doubt, and that is if you are sure that the accused was holding the bag with the dangerous drugs in it, you will convict him of the offence of trafficking in a dangerous drug as specified and alleged in the indictment. Of course there is no dispute that the bag did contain the dangerous drug which has now been produced as exhibits."

Later in his Summing-up he said:

"If you have any doubt about the evidence, you will find the accused not guilty, and that is even if you disbelieve the evidence of the accused and his witnesses."

7. Mr. McCoy, who appeared for the appellant in this court but not in the court below, advanced one ground of appeal, namely that there was a material irregularity in the course of the trial or, alternatively, an error of law in the judge's summing up to the jury in that he failed to define and explain to them the elements of the offence of trafficking in a dangerous drug.

8. We are at a loss to understand why the judge thought that a direction as to the meaning of possession and trafficking would tend to confuse the jury rather than assist them. Since the charge was one of trafficking in a dangerous drug, it was the judge's duty, whatever difficulties he thought it might present to the jury, to direct them on the relevant law and do his best to obviate any confusion by explaining it to them in simple terms.

9. No doubt the prosecution were alleging that the appellant was knowingly in possession of the drug for the purpose of supplying or otherwise dealing in or with it. The judge should have read out to the jury the definition of trafficking in s.2 of the Dangerous Drugs Ordinance Cap. 134 and have told them what it was that the prosecution were relying on to establish the act of trafficking. He should have told them that to prove the case against the appellant the prosecution must establish beyond reasonable doubt that the plastic bag contained the dangerous drug alleged, that the appellant was holding that bag, that he knew that it contained a dangerous drug and that he had the drug for any one of the purposes referred to in the definition of trafficking, which, in the context of the present case, were supplying or otherwise dealing with or in it. Plainly, by their verdict, the jury were satisfied beyond reasonable doubt that the appellant was in physical possession of the bag outside the System One Motor Car Company, as alleged by the police, and that it contained the drug stated in the indictment. Such a finding would necessarily have activated the presumption under s.47 of the Dangerous drugs Ordinance which provides:

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

It was necessary for the judge to direct the jury accordingly and to explain to them that it was for the appellant to rebut the presumption that he was in possession of the drug by proving that it was more likely than not that he did not know that the bag contained a dangerous drug. Having so directed the jury as to the operation of s.47, it was then necessary for him to direct them further that if they found that the appellant had not rebutted the presumption, and was therefore in possession of the drug, they must then be satisfied beyond reasonable doubt that he had the drug in his possession for the purpose of trafficking before they could convict him of that offence.

10. Although it was the appellant's defence that he was not in possession of the drug at all and not that he had it in his possession for his own consumption, it was for the jury to decide whether the quantity of drug seized was such that they could be sure that he had it for the purpose of trafficking. No guidance was given to the jury as to how they should resolve this issue. It was merely assumed that possession equated with trafficking.

11. With regard to the duties of a judge, we need only quote the following passage from page 15 of the judgment of another division of this court in R. v. Mak Foon-than. Criminal Appeal No. 253 of 1984 (unreported):

"We see no substance in the suggestion that, because the trial lasted 21 days, a summing-up of 1½ hours must necessarily be too short. The proper length must depend on the facts of each case. There must, of course, always be general direction on such matters as the duties of judge and jury, the burden and standard of proof, the ingredients of the offence and (where appropriate) on such matters of law as accomplice evidence, corroboration and identification."

Not one of the directions to which we have referred as to the ingredients of the offence and the effect of s.47 was given by the Judge. We are unable to understand why he failed to do so. It is also apparent that prosecuting counsel whose duty it is to ensure that essential matters of law are put before the jury did not draw the judge's attention to these omissions at the conclusion of the summing-up. However, we have some sympathy for counsel for it is quite likely that he formed the view that since the judge had already expressly stated that he did not intend to confuse the jury by directing them as to the meaning of trafficking and possession, it would be futile to request him to give the appropriate directions. Notwithstanding the difficulty in which prosecuting counsel was placed, we feel obliged to say for future guidance that he should not have been inhibited in drawing the judge's attention to the omissions in his summing-up.

12. This was a very strong case indeed. Had the jury been properly directed, we think that, having come to the conclusions which they did that the appellant was in possession of the bag and that it contained the drug stated in the indictment, it was highly probable that they would still have found that he was guilty of trafficking in the dangerous drug. However, in view of the extent of the omissions in the summing-up, we have come to the conclusion that, in all the circumstances, it would not be proper to apply the proviso in this case. We therefore allow the appeal, quash the conviction and set aside the sentence.

13. Having heard submissions, we have no hesitation in ordering a retrial.