HKSAR v. Cheung Kwok Leung

CACC000021/1997

IN THE COURT OF APPEAL

1997 No.21
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer, V.-P. and Mayo, J.A.

Date of hearing: 31 July 1997

Date of judgment: 31 July 1997

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J U D G M E N T

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

1. This applicant faced two counts The first count was one of trafficking in a dangerous drug which was particularized that he on 29^th April 1996 inside a room at Flat B, 3^rd floor, Rear Block, 406 Des Voeux Road West, unlawfully trafficked in a dangerous drug, namely 148.85 grammes of a mixture containing 125.03 grammes of heroin hydrochloride. The second count was also of trafficking in a dangerous drug but it alleged that at the same time and place he was trafficking in 3.84 grammes of a mixture containing 3.25 grammes of heroin. He pleaded not guilty both of those counts. He was found guilty after trial before Bokhary J. of the first count. He was found not guilty of the second count of trafficking but guilty of simple possession of the drugs particularized. He was sentenced to ten years on the first count and six months concurrent on the second count. He now seeks leave to appeal against conviction on that first count.

2. The facts up were as follows. The police went to the premises not in connection with any investigation into dangerous drugs but in response to a call made by the principal tenant connection with a dispute of a tenancy nature. The prosecution's case which was based on the evidence of PC 17642 was that he had found the dangerous drugs inside a large dark red metal box on top of a mattress lying on the floor of the room. The dangerous drugs were in packets and along with them were one used syringe, five new syringes and a number of empty transparent plastic bags.

3. The applicant's evidence was that none of those things were in the dark red metal box. He admitted that he used the room and that he had been in possession of the smaller amount of dangerous drugs, the used syringe and the five new syringes. He said that those things were kept in a small blue metal box inside a white chest of drawers in the room.

4. The appeal turns on one point.

5. The trial judge said when summing up:

"The prosecution's case is that the drugs the subject-matter of both counts were found in the same box inside the room which the accused was using at the time; and that he was in possession of those drugs for the purpose of supplying or otherwise dealing in or with the same. Such possession would constitute trafficking.

In law, 'possession' means more than mere physical possession. By 'physical possession' I mean physical control or custody. That alone does not amount to possession. Possession means having physical possession of a thing plus knowledge on your part that you it in your possession. That is what I mean by 'possession' whenever I use the term.

I repeat, possession means having physical possession of a thing plus knowledge on your part that you have it in your physical possession."

6. The ground that has been urged by Mr. Spicer, who appears for the applicant today, is that there was a material irregularity in the trial because the judge gave a direction with respect to count 1 concerning the issue of knowledge which was not sufficient in the circumstances to enable the jury to decide the issue of guilt. It is suggested that the direction which I have just read was such that it failed to make plain to the jury that they had to be satisfied that the applicant had knowledge that the items in the box were dangerous drugs.

7. The judge when defining possession was, from the outset of the definition, speaking of "the drugs". She made reference, it is true, to the box but in the second paragraph of the definition she speaks of having knowledge of "the thing" and of knowledge that "it" was in the person's possession. She told the jury that "the prosecution had to prove physical possession plus knowledge on your part that you have it in your possession".

8. Some reliance was placed on the case of D.P.P. v. Brooks [1974] 2 WLR 899. This case involved a van driver with ganja (marijuana) in the rear of his van. He was clearly in physical custody of the ganja. The question was "did he have knowledge?" The only issue in that case was whether he really knew what was in the back of his truck. The court there said:

"The only remaining issue was whether the inference should be drawn that the respondent knew that his load consisted of ganja. Upon all the evidence and in particular the fact that he and other occupants of the van attempted to run away as soon as they saw the uniformed police approaching the magistrate was, in their Lordships' view, fully entitled to draw the inference that the defendant knew what he was carrying in the van."

9. The direction to a jury, had that matter been a jury matter, would have been that you must be satisfied that he knew that his cargo was ganja. This was almost exactly, in our view, the direction given by the trial judge when she said "possession means having physical possession of a thing plus knowledge on your part that you have it in your possession". The jury must, we are satisfied, have understood that the words "the thing" and "it" referred to "the drug the subject matter of both counts" and that the judge was telling them that they had to be satisfied as to knowledge by the applicant that he had the dangerous drugs in his possession.

10. There is no merit in this application and it must, therefore, be dismissed.

Representation:

Mr. A.A. Bruce, S.C. & Mr. Edmond Lee (D.P.P.) for the Respondent.

Mr. Rupert Spicer instructed by Messrs. So & Co. for the Applicant.