R. v. Ng Kam Hing and Another

CACC000274/1988

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Coram: Hon. Yang, C.J., Silke, V.-P. & Macdougall, J.A.

Date of hearing : 26-27 March 1992

Date of judgment : 27 March 1992

Date of handing down of reasons: 1 May 1992

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JUDGMENT  OF  THE   COURT

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Macdougall, J.A.:

1. The applicants were tried before O'Connor J. and a jury on an indictment containing two counts both of which alleged that they had in their possession a dangerous drug for the purpose of unlawful trafficking. In the first count the quantity was stated to be 70.774 kgs of a mixture containing 65.029 kgs of salts of esters of morphine. In the second count it was 34.096 kgs of a mixture containing 30.468 kgs of esters of morphine.

2. The first applicant was found guilty on both counts and was sentenced to two concurrent terms of 30 years' imprisonment. The second applicant was found guilty on the first count only and was sentenced to 18 years' imprisonment. They both now seek leave to appeal against conviction and sentence.

   The evidence led for the prosecution was briefly as follows. Acting on information, the police had set up an observation post on the 20th floor of a building in Yue Fung street near the Tin Wan pier at Aberdeen to maintain surveillance over the pier and the area adjacent to it.

3. At about 5.15 a.m. on 24 December 1987 a police sergeant, using his binoculars from the surveillance post, saw a van, DU5409, and two private cars, DD1139 and DH7671, approaching from Aberdeen Praya Road and turn into Tin Wan Praya Road.

4. The van then turned left towards Tin Wan pier and stopped beside a public lavatory adjacent to the pier. Two men, one of whom was wearing dark clothing, alighted and walked around looking about them. The man in dark clothing then took out a portable telephone and appeared to be holding a conversation over it. Meanwhile the two private cars continued to drive along Tin Wan Praya Road for a short distance. They then did a U turn and were parked one in front of the other in Tin Wan Praya Road. Two or three men alighted from each car. Several minutes later car DD1139 drove to the pier and picked up the two men who had earlier alighted from the van. This car then returned to where the other private car was parked, whereupon both cars were driven towards Aberdeen.

5. At about 5.40 a.m. the two cars returned to Tin Wan Praya Road. The 2 men who had earlier arrived in the van alighted at the junction of the road leading to Tin Wan Pier and walked to where the van was parked. The man in dark clothing boarded the van, drove it forward a little and then reversed and parked it at the foot of the pier and next to the gate leading to the Tin Wan Temporary Housing Area. Meanwhile the other man walked around the shoreline in the vicinity of the lavatory. The man in dark clothing, having parked the van, then walked over and joined him.

6. Shortly afterwards the sergeant saw two men moving some tin boxes from^-the pier into the van. The officer in charge of the observation post, a Chief Inspector, then gave instructions over a radio to other officers lying in ambush near the pier to apprehend the men.

7. The chief inspector's testimony concerning the events that occurred after the initial arrival of the three vehicles at 5.15 a.m. agreed generally with that of the sergeant. Whereas, however, the sergeant was not asked to describe the clothing worn by the second man in the van, the chief inspector volunteered the information that he was wearing a yellow or orange upper garment and dark trousers: According to the chief inspector, the second man and the man in dark clothing alighted from one of the cars after their return at 5.40 a.m. and walked towards the van. The man in dark clothing boarded the van and drove it to a place near the pier while the man in the yellow or orange upper garment walked around the lavatory. A few minutes later he saw someone moving metal boxes toward the van. He then instructed the ambush party to close in. When it became apparent that the police were converging on the scene, the man in the yellow or orange upper garment ran onto the pier and leapt into the sea. The chief inspector then left the observation post.

8. There was evidence from officers in the ambush party that when they arrived they saw two men moving a metal box into the van. When one of the officers shouted "Police don't run.", the two men placed the box on top of another box which was lying beside the van, and one of them, the man wearing dark clothing, fled towards the pier and jumped into the sea. However, he was soon apprehended. He was the 1st applicant. The other man, who was not wearing a yellow or orange jacket, also fled, but after a short chase was caught at the edge of the pier. He was the 2nd applicant.  The metal box which he and 1st applicant had been seen by the ambushing officers to be carrying and about to load into the van was one that contained the drug referred to in the lst count, namely salts of esters of morphine.

9. A total of eight metal boxes of drugs was found at the scene. Of these, two boxes of esters of morphine and one box of salts of esters of morphine were in the van. Two boxes were lying beside the van. The upper one of these contained salts of esters of morphine while the lower one contained esters of morphine. The remaining three boxes were found together on the pier. Of these, two contained salts of esters of morphine and one contained esters of morphine.

10. That there was a third person involved in the loading activities at the pier was strengthened by the testimony of a fisherman who said that he saw three men each carry a rectangular box and place it in the van. At least two of the three men then walked to the pier. Shortly afterwards the witness saw two of these men moving more boxes. All of a sudden the police arrived and the men started running.

11. There was forensic evidence that fibres found on the driver's seat of the van matched fibres from the 1st applicant's jacket. A shoe print matching his right shoe was also found on a step of the van. Although no forensic evidence connected the 2nd applicant with the van, fibres from his trousers were found to match fibres discovered on the driver's seat of DD1139. He was also found in possession of the keys to that car, and his fingerprint was lifted from one of its windows. Another of his fingerprints was found on a door of the van.

12. The 1st applicant elected to give evidence. He testified that he and the 2nd applicant had been engaged by one Ah Kwai to load some silver coins and pearls that had been smuggled from China. Each was to be paid $1000 for his services. He said that Ah Kwan had been driving one of the two private cars that had accompanied the van; that he, the 1st applicant, had driven in the 2nd applicant's car DD1139 and had met Ah Kwai and a man called Ah Shing; that Ah Shing was wearing a yellow jacket and had brought a van; that at Ah Kwai's instruction he, the 1st applicant, travelled in the van with Ah Shing while the 2nd applicant followed in DD1139, and that Ah Shing and the 1st applicant then parked the van at the pier and were picked up by the 2nd applicant in DD1139. They then drove off to buy petrol. While looking for a service station, Ah Shing received a call over his portable telephone informing him that the vessel had arrived at the pier. He then told the 2nd applicant to return to the pier. On arrival at a junction near the pier, the 1st applicant and Ah Shing alighted and walked to the pier where Ah Shing instructed the lst applicant to reverse the van into the position where it was found when the police arrived. While he was reversing the van into that position, the 1st applicant saw Ah Shing and two other men whom had never seen before placing some boxes on the ground. Then, having parked the van, the 1st applicant saw Ah Shing load one of the boxes into it. The 1st applicant then assisted Ah Shing to load the remaining two boxes. At Ah Shing' request the 1st applicant went to the pier to assist in the removal of more boxes. As he was about to pick up the boxes he heard two shouts, one from Ah Shing at the van telling him to run, and another, "Police don't run", which came from someone else. Seeing Ah Shing run past him and jump into the sea, the applicant followed suit. However, he was soon apprehended.

13. The 2nd applicant elected not to give evidence.

14. Mr. Sedgwick, who with Mr. Matthews appeared for the 1st applicant in this court but not in the court below, advanced three grounds of appeal.

15. Grounds 1 and 2 read as follows:

"(1) The Learned Judge erred in directing the jury in the following terms:

'Now members of the jury, I've told you about presumptions and how they might establish ingredients two and three of the charges. However, its quite open to you to find all these four ingredients, including the second and third, it is open to you to find those proven even without the light of presumptions.

It is a matter for you, applying your common sense, when considering the evidence to decide whether those are proved, even if there are no presumptions;'

In that such a direction;

a) was likely to confuse the Jury in the light of His earlier directions in respect of the presumptions contained in s.47 Dangerous Drugs ordinance Chapter 134 Laws of Hong Kong;

b) contained no instructions to the jury as to how they should consider the evidence against the appellant (sic) in the absence of the presumptions and in particular, failed to remind them that in such instance the appellant (sic) would have no burden whatsoever placed on him.

(2) He further erred in directing the jury in the following terms:

'And the let-out is this - it is to this effect - that if, in the light of all the evidence in the case, you conclude that more probably than not a particular presumption would be wrong, then that presumption falls away and you would not rely upon it in arriving at your verdict.

So you consider whether the presumptions arise and then you consider in the light of all the evidence in the case is (sic) that presumption or inference which the law says arise, and if you come to the conclusion that in all the circumstances that particular presumption, in this case, is probably wrong, probably contrary to the actual facts, then the presumption falls away and you would not rely upon it.'

The said direction being confusing as to how the jury should approach the presumptions, i.e. either singly or all at once and further containing no charge as to how to the evidence in the event of their finding that one or more of the presumptions did not operate as against the appellant (sic), in particular that in such circumstances no burden whatsoever would be placed on the appellant (sic)."

16. The earlier directions referred to in ground 1 were these:

"If you find it proven that the 1st defendant was in control of the van, at the time the drugs were in it, then it is presumed that the was also in control of the drugs that were in the van. So if you find it proven that at the time the drugs were in the van he was in control of the van, then there is a presumption that he was also in possession, in control of the drugs in the van. That is, if you find he was in control of the van while the drugs were in it, then that would give rise to a presumption that would satisfy the second ingredient in respect of the 1st defendant. And remember that in the van were drugs of both counts.

So if he is in control of the van, a presumption would arise - while the drugs were in it, a presumption would arise that he was in possession of two tins of drugs in relation to the First Count and one tin in relation to the Second Count,"

and

"If you find it proven, beyond reasonable doubt, that the 1st defendant was in possession, in the sense of control, of a dangerous drug - and remember that could be established by the first presumption - if you find that he was in possession, in the sense of control, of a dangerous drug, and, as I say, that could be established by the presumption I have just dealt with previously, if you find that proven, then a further presumption arises, and that third presumption could prove the third ingredient, because that presumption is that he knew it was a dangerous drug. So there it is, members of the jury.

One presumption, as it were, springs from another. If it is proved, beyond reasonable doubt, that he was in control of the van at the time the drugs were in it, then a presumption arises that he was also in possession of the drugs, second ingredient, and if the second ingredient is established, that is that he was in possession of the drugs, then another presumption arises that he knew it was a dangerous drug, and that would satisfy the third ingredient.

Similar presumptions would also arise in relation to the 1st defendant, and the top box beside the van which is a Count 1 box, a Count 1 type drug box, and that presumption would arise in the way that if you found that he was in control of that top box of the two boxes beside the van, if you found he was in control of that box, then there would be a presumption that he knew it contained dangerous drugs and that would establish the third ingredient in relation to that box which - I mention again, that box is a Count 1 type drug box."

17. The four ingredients which the judge said must be established in respect of each applicant on each count were (1) that the relevant substance seized was the drug named in that count, (2) that each applicant was in possession of at least part of the quantity of the drug specified in that count, (3) that each applicant knew that the relevant substance was a dangerous drug and (4) that each applicant was in possession of the drug for the purpose of trafficking.

18. Sub-ground (a) of ground 1 and ground 2 really fall to be considered together.

19. The judge gave a general direction that the burden of proof was on the prosecution to prove its case on each count and against each applicant beyond reasonable doubt so that the jury were to be sure of guilt. He then explained to them that the presumptions under the Dangerous Drugs Ordinance did not arise unless the facts which the prosecution alleged gave rise to them were proved beyond a reasonable doubt. Following this the judge gave directions to the jury as to the burden that rested on an applicant in rebutting any presumption that might have arisen against him.

20. Mr. Sedgwick submitted that the latter directions, being couched in the_-same terms as those which were the subject of complaint in R.v. Chan Ho-kuen [1990]2 HKLR 345 (P.C.), were likely to have confused the jury.

21. We do not think that there was any such likelihood. While it is true that the Judicial Committee disapproved of what was referred to as the "new route" taken by the judge, who was also the judge in the present case, and were of the opinion that the various phrases employed by him lacked the necessary precision and clarity, their lordships concluded that his direction contained no errors of law. Mr. Sedgwick was unable to refer us to any aspect's of the judge's direction in the present case that materially distinguished it from that given in Chan Ho-kuen. The present applications had in fact been held over until the decision in Chan Ho-kuen was known, and their hearing was further delayed as a result both of successful applications for adjournment and for the provision of a lengthy transcript, and of changes in legal representation.

22. With regard to sub-ground (b), Mr. Sedgwick submitted that the judge failed to direct the jury as to the approach they should adopt were they to find that the various primary facts had not been proved to the standard required to activate the presumptions. He complained that the judge should have directed the jury that "if they found that the presumptions were not activated there would be nothing to be disproved by anyone" and that he should have reminded them that, in the absence of the presumptions, the Crown had the burden of proving each and every element of the offences beyond reasonable doubt.

23. The judge made it abundantly plain to the jury in his general directions on the burden of proof that "before you can convict either defendant on either charge, you would have to be satisfied beyond reasonable doubt that that defendant was guilty on that charge" and "when I say, before convicting a defendant on the charge you have to be satisfied beyond reasonable doubt of his guilt, that can be put another way. The other way would be to say that before you convict, you have to be sure of guilt."

24. Later, when he came to the subject of presumptions, he told them that "if certain facts are proven beyond reasonable doubt then presumptions or inferences, if you like to call them that, which assist the Crown arise from those facts". The judge then referred to the matters upon which the Crown relied to activate the presumptions. Following this he directed the jury that if, on a consideration of all the evidence in the case, they were to come to the conclusion that a particular presumption had been rebutted - to use the judge's own words, "had fallen away" - they were not to rely on it in arriving at their verdict.

25. Then, at the conclusion of his summing up the judge said this:

"Now, members of the jury, that is all really I want to tell you about the evidence, and it is a matter for you to consider these matters and arrive at your conclusions, as to whether the guilt of either accused is proven or not on either charge. Of course, if you find that the guilt of either defendant is not proven beyond reasonable doubt, it will be your duty - and I have no doubt it will also be your pleasure - to acquit."

26. We are entirely satisfied that the jury would have been left in no doubt that if they found that the presumptions were rebutted they were to ignore them in arriving at their verdicts, and that unless the guilt of a defendant was proved beyond reasonable doubt he must be acquitted. Both grounds of appeal fail.

27. Ground 3 is as follows:

"(3) The learned Judge erred in that he failed to direct the jury adequately or at all that the onus on the appellant under the Dangerous Drugs Ordinance (supra) is lesser than the onus of proof beyond Reasonable doubt placed on the Crown."

28. Mr. Sedgwick submitted that where, as the result of the operation of a presumption, a burden of proof is placed on a defendant, it is incumbent on the judge to direct the jury that the standard of proof required to discharge that burden is far lower than that which rests on the Crown.

29. In support of this contention he cited the following passage in R. v. Lee Wai-keung [1991]1 HKLR 585 at 593:

"It hardly needs stating that where a judge takes it upon himself to explain the meaning of proof on the balance of probabilities he must do so clearly and accurately. In our view the real issue in this appeal is whether the judge achieved that result. We have come to the conclusion that he did not Instead of directing the jury that the expression meant that, in contrast with the burden cast on the prosecution, the accused only had to prove that their explanation that they were unaware of the presence of the drugs was more likely to be true than not, he told them that it meant proof by means of credible evidence through a witness and that nothing would be proved unless the witness was believed.

We are of the opinion that this explanation begged the question and was more misleading than enlightening. It was likely to lead the jury to think that the standard of proof cast on the applicants was higher than that of proof on the balance of probabilities. That being so, we have come to the conclusion that the convictions are unsafe and that the applications for leave to appeal against them must be granted."

30. As that passage makes clear, we were there concerned with a direction that was likely to lead the jury to think that the standard of proof borne by the defendants was higher than that imposed on them at law. We did not say, nor is it our view, that where a judge gives a correct direction on the burden and standard of proof applicable in rebutting a presumption, he must go further and state the obvious fact that proving something is more probable than not is less onerous than proving it beyond a reasonable doubt, that is, so that one is sure.

31. In Chan Ho-kuen the Judicial Committee stated at page 351 of the report that on the facts of that case all that was necessary in explaining the expression "the contrary is proved" was to tell the jury:

"(i) that it was the obligation of the accused to prove the contrary,

(ii) that whereas the prosecution had to prove their.case beyond reasonable doubt, the accused only had to prove that their explanation as to how they came to be in possession of the drugs was more likely to be true than not and

(iii) that if the jury were so satisfied, then the presumption that the appellants knew the nature of the drugs found in their possession would not apply."

32. In our view, on the facts of the present case, the judge fulfilled those requirements in his directions to the jury. This ground also fails.

33. Mr. Hemmings, who appeared for the 2nd applicant in this court and who also did not appear in the lower court, submitted that the applicant's conviction on the 1st count, was unsafe and satisfactory. He advanced the following arguments in support of that contention.

34. First, the only logical basis for the jury's verdicts in respect of the 2nd applicant of guilty on count 1 and not guilty on count 2, was that the reason they found him to be in possession only of the upper box of the two boxes of drugs lying on the ground at the side of the van was that there had been evidence that he was seen handling that box.

35. Secondly, two questions asked of the judge by the jury when they returned to court to seek further directions were indicative of substantial misunderstanding on their part as to what constituted possession in law in'relation to dangerous drugs.

36. Thirdly, the directions given by the judge in the summing up proper as to the meaning of "possession" and "control", and his subsequent directions in answer to the jury's questions, were inadequate, confusing and misleading. In particular, he did not adequately direct them on the difference between physical control and possessory control.

37. There can be no doubt that, on the evidence before them, it was open to the jury to find the 2nd applicant guilty on both counts. Surprising though their verdict of not guilty on the second count was to the trial judge, and is to this court, it is significant that it has not been advanced as a ground of appeal that the verdicts on the two counts were inconsistent.

38. In the light of the evidence that different boxes related to different counts in the indictment and that different men - there were at least three, including the man wearing the yellow or orange upper clothing - were seen carrying boxes, it seems that the jury could only be sure that the 2nd applicant was guilty on the count that related to the box which he and the 1st applicant were seen to be about to load into the van. We do not think that what might be termed a legalistic approach to the evidence by the jury can justifiably form the basis of any complaint by the 2nd applicant.

39. Moreover, we are not persuaded that, by their questions, the jury indicated that they had misunderstood the judge's earlier directions as to what constituted possession. The judge had said this:

"The second ingredient that has to be proven in respect of each charge, is that the particular defendant whose case you are considering - it has to be proven that he was in possession of the drug charged. Possession in this sense means in control of it, that he had control of it. So the second ingredient before you convict a defendant on a particular count is it has to be proven that he was in possession in the sense of control of at least on tin of drugs in relation to that count.

You would consider whether on all the evidence a particular defendant was, for example, in control of all the tins at the pier, that is of all eight tins or whether he was in control of some of them and, if so, which. If you find that in respect of even one tin relative to a particular count he was in control of it, then you would find this element of possession or control proven. Do you follow that?

You would consider such matters as whether he went to the pier and handled the tins and, if so, why he went to the pier and what he did there. Is that proven that he had taken control of all the tins or any of the tins and, if so, which?

When considering this, you would also keep in mind what he did in respect of the tins, or any or them, and which of them. The police witnesses in effect say that both defendants handled and were loading the top tin. When I say 'the police officers', there is a reservation, I should say 'police witnesses'. I don't intend to say all of them, but some police witnesses said in effect that both defendants handled and were loading the top tin found beside the van - which is a count one tin- were loading it onto the van when the police revealed themselves.

The 1st defendant's evidence while differing of course from the evidence of the police officers on a number of matters - but the 1st defendant's evidence was to the effect that the had loaded two tins onto the van. However, of course, he says that the 2nd defendant was not down at the pier or involved in handling tins.

When the defendants were arrested, three tins had already been loaded onto the van and two of them relate to Count 1 and one of them relates to Count 2.

It would be open to you to find that both defendants were in control of those tins if you find that they, acting together, loaded them onto the van intending to transport them. So it is really a question for you as jurors, as deciders of fact, to decide whether it is proven that a particular defendant was in control of any drugs and, if so, which.

I should mention that more than one person can be in possession or control of an item at the same time. There can be joint possession or control. That is, I think, self-evident, once you consider it. More than one person can be in control of an item at the same time.

Now, members of the jury, I've told you there are four ingredients to be proven and I've told you the first one is that the substances are the substances alleged, and that there's no problem about it.

I've told you that the second item is that before you could convict a defendant on either count you will have to be satisfied that he was in possession in the sense of control of, at least, one item of drugs relative to that count, and I'm going on now to tell you what the third ingredient is.

The third ingredient that has to be proven, before you can convict a defendant, is that it has to be proven that that defendant knew that a particular substance in question as a dangerous drug. It has to be proven that that defendant knew that the substance in question was a dangerous drug."

40. Thus, having already told the jury that it must be proved that the substance of which a defendant was alleged to be in possession was in fact the substance referred to in the relevant count in the indictment, the judge clearly went on to direct them that, in order to find an accused guilty of having a dangerous drug in his possession, it had to be proved not only that he had control of it but that he knew that it was a dangerous drug. We do not think that any further direction was necessary on the question of possession.

41. In DPP v. Brooks [1974] AC 862 at 866 Lord Diplock said:

"In the ordinary use of the word 'possession', one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control. This is obviously what was intended to be prohibited in the case of dangerous drugs."

42. The two questions from the jury which Mr. Hemmings submitted revealed that they were confused as to what constituted possession were as follows:

"If we believe that [the 2nd applicant] did have hold of the tin box with [the 1st applicant] and it says Exhibit 15, does this constitute control of the box or possession?", and

"Please clarify if [the 2nd applicant] had moved the top box on the ground next to the van, and if he is declared guilty on the first count, then does it mean that he is guilty on the second count since the bottom box, which is Exhibit 17, was just under the top one?"

43. Exhibit 15, of course, was the tin box which both applicants were seen in the process of loading into the van when the police burst onto the scene and which, on seeing the police, they deposited on, top of the tin box, Exhibit 17, that was already lying on the ground alongside the van.

44. We should observe here that the judge had received four questions from the jury, each one of which was written on a separate piece of paper by a different juror. It seems therefore that the questions were not asked by the jury as a whole but by four members individually. For the purpose of this application the other two questions do not concern us.

45. Mr. Hemmings sought to persuade us to interpret the first question as indicating that the jury were making a distinction between control and possession, and that theywere seeking a further direction to assist them in determining whether the 2nd applicant"s act of holding the tin box amounted to control of it or whether it constituted possession of it.

46. In our view this demonstrates a misunderstanding of the question. The construction which Mr. Hemmings seeks to place on it is based on the fact that the words "or possession" appear at the end of the sentence. We think it is clear that the juror asking that question was not seeking to have the judge explain whether there was any distinction between control or possession, but was enquiring whether the fact that the 2nd applicant was holding that particular tin box amounted to possession of it for the purposes of an offence against the Dangerous Drugs Ordinance.

47. Each count was one of possession of a dangerous drug for the purpose of unlawful trafficking, and the judge had made it plain that when he was referring to "control" it was in the context of "possession", as the following passage shows:

"So the first ingredient and the fourth ingredient should cause you no problems. The two ingredients that you have to direct to is - in respect of each defendant on each count - was he in possession in the sense of control of any of the drugs relative to that count, and if he was, did he know that the substance was dangerous drugs."

48. We digress here to observe that, while possession in the present case included both control of the thing allegedly possessed and knowledge that it was a dangerous drug, the fact that on a strict reading of his directions the judge equated possession of a substance with custody of it without consideration of the element of knowledge that it was a dangerous drug, does not in any way detract from the substantial accuracy of his directions. What was important was that the jury were left in no doubt that, in order to return a verdict of guilty, it was necessary to be sure that the two elements of custody and knowledge had been proved.

49. It is apparent that the judge understood the first of the two questions posed by the jury in the same way in which we have done. The following passages in his reply to that question are relevant both to his understanding of it and to whether he gave a correct direction in law:

"The first things is that to control something you don't have to be the owner of it. That is the very first thing. You don't have to be the owner of something in order to be in control of it, and indeed you could be the owner of something and not be in control of it. If you pawn something, you are not in control of it. You can get it back of course but the pawn-broker has custody and control of it. So the first thing is about control or custody, you don't have to be the owner.

Now the second thing is that in order to be in control of something or custody, you have to intend to be in control of it, you have to intend it. An example that I might give you, supposing I had a hand-grenade here, I pulled the pin out and threw it over a you and one of you fell back and caught it and immediately there it away, you wouldn't have had the control of it because you never intended to have control of it. You see, your catching it would have been an instinctive action without any intention to control it. I simply mention that as an example to perhaps assist you in coming to your consideration of what control consists of. So you must intend to have control, to exercise control in order to be in control.

The next thing is that to have control of something, the control of it needn't be very long. You can have control of something, it doesn't mean you have to have it for a long time. If someone, a doctor or a policeman, pulled out his revolver and shot him and threw the revolver away, he would have been in control cf the revolver. That might be an example. You don't have to be in control for a long time in order to be in control.

Now what else might have you as regards for control in this sense would be? Custody would be control, to have custody of a thing. That is another word that you could consider. It might help you. You have control or custody of something if you have the care of it. If you had immediate and direct control over a thing intending to have - I emphasize on all these matters you must intend to have control. If you had immediate and direct - you see, I was going to help you as to what control means and immediately I start using the word 'control itself because the word in itself conveys a meaning to you. But if a person had immediate and direct jurisdiction as it were over what would be done with a thing, he would be in control of it, you might think.".

and:

"Now the thing is that people can have joint control of something. I don't know that I need give any examples of that. Two people could have control of something at the same time. The simplest matter might be a joint bank account but there are many other things that two persons can have possession of at the same time. The furniture in a flat might be in the joint possession of husband and wife. So the fact that another person is in control doesn't mean - the fact that A is in control doesn't mean that B is necessarily not in control also. He might or might not, it depends on the circumstances."

50. We think that these directions were entirely adequate and are not persuaded that the question posed suggests that the jury were confused. On the contrary, we are satisfied that it demonstrates the care with which they approached their task.

51. As to the second question, the judge simply replied:

"Well, that it is a matter for you, members of the jury. That is the very reason we have got you here, for you to decide but not for me. It is for you to decide whether he had custody in the sense of control of any of the boxes including that one, and you should look at all the evidence and come to your conclusions. That is exactly why you are here. You can't ask me to answer the question but it is for you to answer."

52. The jury were therefore left in no doubt that the question of whether an applicant was in possession of a particular box was to be determined on a consideration of all the evidence. We do not think that they were left under any misapprehension that a finding of possession by an applicant of one box led inexorably to a finding that he was in possession of any other box. Indeed, by their verdicts, they plainly demonstrated that they were not labouring under any such mistaken notion.

53. We have already stated that we are entirely satisfied that the judge's directions on possession and its elements of control and knowledge were correct and in no way misleading. In the circumstances of this case it was not necessary for him to expand upon those directions.

54. For these reasons we dismissed the applications for leave to appeal against conviction.

55. With regard to the 1st applicant's application for leave to appeal against sentence, Mr. Sedgwick submitted that, having directed the jury that they could find the applicant guilty on a particular count in the indictment even if they concluded that he was in possession of only part of the drugs relating to that count, it was incumbent on the judge to view his offences in the light which was most favourable to him and to sentence him on the basis that he was in possession of only one box of drugs on each count.

56. Bearing in mind the evidence of the 1st applicant's involvement in these offences; his driving of the van to the location where the loading of boxes of drugs took place; that this was the only vehicle in to which boxes of drugs were being loaded; and the fact that he was seen participating in the loading of the first three of those boxes into the van and then go to the pier and return with another box of drugs which he was about to load into the van when the police arrived, we consider that it would have been totally unrealistic for the judge to have sentenced him on the basis of one box of drugs on each count.

57. This was a huge consignment of drugs which the evidence disclosed could have been converted to 1461.345 kilograms of number 3 heroin at a street value of $77,436,671. We would not disturb the sentences imposed on him.

58. Mr. Marash, who addressed us on sentence on behalf of the 2nd applicant, pointed to the fact that the judge had accepted that by their verdict the jury had concluded that that applicant was in possession of only one tin box of salts of esters of morphine. He submitted that the sentence of 18 years' imprisonment was excessive in the light of sentences which, at the time that this offence was committed, were being imposed on what he termed "mere couriers" found in possession of quantities of heroin comparable to the 191.27 kilograms of number 3 heroin to which that one tin box of salts of esters of morphine could have been converted.

59. Mr. Marash referred us to the decision of this court in R. v. Cheung Chi-ling (unreported) Criminal Appeal 1 No. 105. of 1990 and contended that, since there was no evidence that the 2nd applicant was anything more than a courier, his sentence should be reduced.

60. Although we think that the jury adopted an extremely legalistic approach to the evidence relating to the 2nd applicant's role in this enterprise, it was a view they were entitled to take and is one which this court must accept. We therefore granted his application for leave to appeal against sentence, allowed the appeal, quashed the sentence and substituted one of 16 years' imprisonment.

Representation:

Mr. C. Coghlan & Mr. Forlin C.C. for Crown Prosecutor

Mr. A. Sedgwick, Q.C. & Mr. Jerome Matthews instructed by M/S Tang, Wong & Cheung for D1

Mr. John Hemmings instructed by M/S Chan & Kong for D2 (re: conviction)

Mr. D. Marash instructed by M/S Chan & Kong for D2 (re : sentence)