Norman David Mayer v. The Queen
Read the full judgment text of CACC 240/1977 on BabelCite. This Court of Appeal judgment.
1. The appellant was charged under section 4 of the Dangerous Drugs Ordinance (Cap. 134) with trafficking in a dangerous drug, cannabis. During the course of the trial the prosecution had to concede that the drugs were "in transit" as defined in section 2 of the Ordinance. Section 4(4) of the Ordinance provides that the section does not apply to a dangerous drug which is "in transit." It followed that the appellant could not be convicted under section 4, the section under which he had been charg
|
CACC000240/1977
-----------------
----------------- Coram: Pickering, J.A., Leonard & Cons, JJ. Date of Judgment: 6th October, 1977. ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. The appellant was charged under section 4 of the Dangerous Drugs Ordinance (Cap. 134) with trafficking in a dangerous drug, cannabis. During the course of the trial the prosecution had to concede that the drugs were "in transit" as defined in section 2 of the Ordinance. Section 4(4) of the Ordinance provides that the section does not apply to a dangerous drug which is "in transit." It followed that the appellant could not be convicted under section 4, the section under which he had been charged. Under the Third Schedule to the Ordinance where a person is charged with unlawful trafficking in a dangerous drug contrary to section 4 thereof and the evidence does not support that charge, he may nevertheless be convicted of possession for the purpose of unlawful trafficking contrary to section 7. The learned judge acceded to a submission by the Crown that the appellant should be so convicted and convicted him under section 7. 2. There were numerous grounds of appeal but we are only concerned with the first which was to the effect that in circumstances in which conviction under section 4 was barred by virtue of the fact that the drugs were in transit it was not open to the Court to convict under section 7. Stated simply the argument was that by definition under section 2, goods in transit are goods imported into Hong Kong for the sole purpose of being exported from Hong Kong to another country; admittedly to import or to export drugs was to traffic in them (see the definition of "trafficking" in section 2) but where the goods were in transit such trafficking was not unlawful under section 4 which was the general section dealing with trafficking; since by definition import for the sole purpose of export was the test of "in transit" there could be no other purpose (such as trafficking) associated with possession of the goods and therefore it was impossible to say that the drugs were possessed for the purpose of trafficking in them; moreover, the argument went, it strained logic to say that if an accused could not be convicted of the substantive offence of trafficking by virtue of the exception of goods in transit contained in section 4 sub-section (4), he could nonetheless be convicted of possessing the goods for the purpose of unlawful trafficking. 3. As against this summation counsel for the Crown argued that in bringing the goods into Hong Kong without a valid export or authorisation certificate as required by section 14(1)(b) of the Ordinance, the proof of which is upon the appellant by virtue of section 94A of the Criminal Procedure Ordinance (Cap. 221), he was bringing them in unlawfully and therefore trafficking in them. This argument would have its appeal but for the fact that it is section 4 which constitutes the offence of unlawful trafficking and subsection (4) thereof specifically exempts from the operation of section 4 drugs 'in transit' that is, imported for the sole purpose of export as were these drugs. The argument thus comes full circle. An attempt was made by the Crown to argue that by virtue of the definition of "unlawful" or "unlawfully" in section 2, the intention on the part of the appellant to export the drugs, amounted to unlawful trafficking but section 4 having failed, this is a strained construction which cannot withstand the juxtaposition of the various "Parts" of the Ordinance, to which I shall refer. 4. There can be no doubt that the appellant committed an offence under section 14 which relates to goods in transit but for the reasons I have summarised as constituting the first ground of appeal, I do not consider that there was any offence under section 7. Nor, reading the Ordinance as a whole, do I consider that the Legislature intended section 7 to apply to goods in transit. Section 7 appears in Part II of the Ordinance which is headed "Control of Import, Export, Procuring, Supply, Dealing in or with, Manufacture and Possession of Dangerous Drugs" whereas goods in transit are dealt with in Part III headed "Issue of Licences and Certificates, Requirements in Connexion with Lawful Import and Export of Dangerous Drugs, and Dangerous Drugs in Transit" and within that Part sections 14 to 17 deal specifically with drugs in transit. Had section 7 been intended to relate to goods in transit one would have expected it to contain some such preamble as "notwithstanding anything contained in section 4 sub-section(4)." 5. The Crown's difficulty in this case arose when, upon the concession being made that the drugs were in transit, there was no application to amend the charge to one under section 14 but rather a striving for an alternative verdict under section 7. An amended charge under section 14 must almost inevitably have succeeded but we cannot substitute a conviction under section 14 since it is not one of the "other offences" contained in the Third Schedule in respect of which conviction can be entered despite the fact that the evidence does not warrant conviction under section 4. The Crown proceeded under the wrong section and failed, when the status of "in transit" became apparent, to apply for amendment to the appropriate section. 6. The application for leave to appeal is allowed, the convictions quashed and the sentences of imprisonment for three years and 15 months concurrent, imposed in respect of two different quantities of cannabis, set aside. Representation: B. Bernacchi, Q.C. & Raymond Leung (Gunston & Chow) for appellant. S.P. Graham for Crown/respondent.
----------------- Coram: Pickering, J.A., Leonard & Cons, JJ. Date of Judgment: 6th October, 1977. ----------------- JUDGMENT ----------------- Leonard, J. : 7. The appellant originally faced two charges of trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance Cap.134. The particulars of the first charge were that on the 8th of April 1976 at Kai Tak Airport he trafficked in a dangerous drug namely approximately 6 ¾ lbs. of cannabis. The particulars of the second charge were the same save as to amount, the amount charged being approximately 38 lbs. of cannabis. 8. The brief facts were that the appellant arrived at Kai Tak Airport on the 8th of April 1976 from Bangkok on a Pan American flight to Los Angeles intending to spend the night in Hong Kong and to continue on the same plane on the following morning. The over-night stopover was a scheduled one. On arriving at the Customs for clearance the accused had with him three pieces of cabin luggage one of which contained an airway bill for a hand-carved picture encased in a wooden crate consigned aboard the same aircraft Bangkok to Los Angeles. An examination of the hand luggage carried by the appellant revealed that it contained in secret compartments the cannabis the subject of the first charge. The cannabis, the subject of the second charge, was found concealed in the hand-carved picture, the subject of the airway bill I have mentioned. 9. The appellant by his own wish was not professionally represented in the court below and his conduct of his defence was possibly such as to distract attention from the real issues involved. Be that as it may it was not until the morning of the 4th day of trial that the Crown conceded that it could not establish that the cannabisin question was not in transit for the purpose of the Dangerous Drugs Ordinance and that it would accordingly be necessary for the Crown to "rely eventually on section 42" of the Dangerous Drugs Ordinance. Section 4(1) of that Ordinance reads:
Section 4(4) provides:
Section 42 deals with conviction of offences other than those charged. It provides:
The Third Schedule provides that a person charged with unlawful trafficking contrary to section 4 may be convicted of possession of dangerous drugs for the purpose of unlawful trafficking therein contrary to section 7. 10. The only definitions in section 2 of the Ordinance to which I need to refer are: "in transit" which means "imported into Hong Kong for the sole purpose of being exported from Hong Kong to another country". "Trafficking" in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying, or otherwise dealing in or with the dangerous drug, and 'traffic in a dangerous drug' shall be construed accordingly". Thirdly "unlawful" or "unlawfully" "in relation to trafficking in or manufacturing or storage of a dangerous drug, means otherwise than under and in accordance with this Ordinance or a licence issued thereunder". The appellant was in due course acquitted of the offences with which he was charged under section 4 of the Dangerous Drugs Ordinance but was found guilty on two counts of possessing approximately 6.21 lbs. and approximately 34.22 lbs. of cannabis on the 8th April 1976 for the purposes of unlawful trafficking therein under section 7 of the same Ordinance. Section 7(1) provides:
The penalties prescribed under section 7 were the same as those prescribed under section4 namely -
In the event the appellant was sentenced to 15 months' imprisonment on the first charge i.e. that relating to the cannabis found in his personal luggage and three years' imprisonment on the second charge i.e. that relating to the cannabis found concealed in the picture, the subject of the airway bill I have mentioned. 11. The first ground of appeal and the sole ground with which in the event we concern ourselves was that "Having been acquitted of trafficking under section 4 of the Dangerous Drugs Ordinance Cap.134 because the alleged cannabis was in transit, the learned judge misdirected himself in law and fact in convicting the appellant under section 7." (sic). The question for decision was whether on its true construction section 7 covered the case of a person found in possession of a dangerous drug which the Crown conceded was in transit. To put it another way can a person be guilty of possession, for the purpose of unlawful trafficking, of a drug which is in transit, when his sole intention in relation to it is to export it and when it is conceded that the intended act of exportation would not amount to trafficking under section 4. I have no doubt but that if one interprets section 7(1) in isolation he can. I say this because of the definition of the word "unlawfully" which I have already quoted. The use of that word in section 7(1) coupled with the fact that section 14(1) of the Ordinance lays down:
leads me to the conclusion that, while it is an "importer" who commits an offence under section 14, if the importer and exporter are, as here, the same person that person possesses the drugs while they are in Hong Kong "otherwise than under and in accordance with this Ordinance or a licence issued thereunder". He intends to export them (which by definition is trafficking) and the export is not in accordance with the Ordinance so that on a literal interpretation of section 7 he commits an offence. 12. It is however trite law to say the Ordinance must be read in its entirety. Section 7 must be construed with reference to its context. I am satisfied on the examination of the Dangerous Drugs Ordinance in its entirety that the Legislature did not intend to include in the ambit of section 7 a person dealing with dangerous drugs in transit. It is to be noted that the Ordinance is divided into a number of parts: Part I which deals with the short title and interpretation; Part II in which both sections 4 and 7 are contained deals with the control of import, export, procuring, supply, dealing in or with, manufacture and possession of dangerous drugs. Admittedly section 4(4) does not say that Part II of the Ordinance does not apply to the import or export of dangerous drugs which are in transit. It says that that section does not apply but the entire tenor of Part II indicates that it is concerned with drugs which are not in transit; Part III of the Ordinance is the Part which concerns itself with dangerous drugs in transit and it is in that part that section 14 is to be found. Part IV of the Ordinance deals with statutory authority to procure supply and possess dangerous drugs. The remaining parts need not concern us. I am satisfied that the Legislature intended to make a distinction between dealing with drugs in transit on the one hand and trafficking in them or possessing them for the purposes of unlawful trafficking in them on the other. It seems to me clearly the intention that the liability of a person concerning himself with drugs "in transit" should be determined with reference to Part III and in particular section 14 to the exclusion of Part II and in particular sections 4 and 7. Had the Legislature intended otherwise one should have expected it to manifest its intention in section 7 by the use of some such phrase as "Notwithstanding anything in section 4(4)" or "including drugs in transit." 13. For these reasons I am convinced that the learned judge misdirected himself in law in convicting the appellant under section 7 when faced with the concession that the drugs in question were in transit. I consider that when making that concession the Crown might well have applied for an amendment of the charge so as to specify an offence under section 14 rather than leave the charge as one of trafficking (which could not possibly succeed) and "rely eventually on section 42". 14. I would allow the application. Cons, J. : 15. I wish to add nothing except that I agree with the conclusion reached by both my learned brothers. Representation: Mr. Bernacchi, Q.C. & Mr. R. Leung (Gunston & Chow) for appellant. Mr. Graham, C.C. for Crown/respondent. |