The Queen v. Law Chi-keung and Others

CACC000290/1983

Criminal law - presumption against accused - degree of proof required to rebut - test is not whether contrary was "likely" but whether it was more likely than not - the phrase "on a balance of probabilities" has withstood the test of time.

BETWEEN

Coram: Sir Alan Huggins, V. -P.,  Barker, J.A. & Penlington, J.

Date of Judgment: 1st November 1983.

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V. -P. :

1. These were consolidated applications for leave to appeal against conviction by three of seven defendants, namely, 2nd, 6th and 7th Defendants. The 2nd Defendant was charged on two counts of possession of dangerous drugs for the purpose of unlawful trafficking (Counts 2 and 3) and the others on one count of doing an act preparatory to, or for the purpose-of, manufacturing dangerous drugs (Count 6) and one of trafficking in a dangerous drug (Count 7).

2. The evidence material to these applications was as follows. All the Applicants were arrested following prolonged surveillance by customs officers. The 6th and 7th Defendants drove to Fei Fung House, Chai Wan, in a motor car. The 6th Defendant took a suitcase from the boot into the house.The two men later emerged with a brown and white bag and drove away They were,seen to make a rendezvous with the 1st and 2nd Defendants, but the officers did not see anything pass between them. The 1st and 2nd Defendant then drove to 369 prince Edward Road.  Later the 1st and 2nd Defendants emerged and were arrested. suitcase was found in Fe Fung House four hours after its delivery there, and inside it were items admittedly connected with the manufacture of dangerous drugs, including a tin which had on it a finger-print of the 7th Defendant. In the car boot from which the case was taken was found a meat grinder bearing traces of dangerous drugs.

3. The 1st Defendant pleaded guilty to Counts 2 and 3, the drugs in Count 2 including those found on him when he was arrested and those in Count 3 being those found in 369 Prince Edward Road when the flat was searched. The 2nd Defendant was acquitted by the jury of possession of the drugs alleged to have been found on him and upon the 1st Defendant upon their arrest (Count 2), presumably because  the evidence was that some of the drugs were found in his jacket pocket and it was proved that his jacket had no pockets. His conviction in respect of the drugs found in the flat (Count 3) was based upon a presumption arising from the alleged finding in his trousers pocket of a bunch of four keys, one of which gave access to the flat. The 2nd Defendant's defence to Count 3 was that those keys were not found on him and that he was in truth carrying only a bunch of five keys, which did not give access to the premises.

4. The story of the 2nd Defendant was supported by evidence that upon his arrest he was searched and his property placed in a plastic bag at the Customs Headquarters. A list made of that property included a bunch of four keys. Later all those arrested were transferred to a police station and the 2nd Defendant was handed his property in a closed plastic bag with the exception of the bunch of keys and one other item, which were detained as evidence. He signed for the items received. He was handcuffed throughout the journey. At the police station he was "searched", although it is not clear whether that involved anything more than taking from him the closed plastic bag. He was then found to have in his possession the bunch of five keys which he said were the only keys on him at the time of his arrest. How taese keys came to be in his possession was not -explained in the evidence.

5. It was argued that the conviction on Count 3 could not safely stand in the light of the acquittal on Count 2 and of the doubt cast on the evidence of the customs officers by the finding of the bunch of five keys This doubt was increased by the fact that the alleged finding of the four keys was not reported until some appreciable time after the arrest. We accept that. a jury is, in general, entitled tb believe one part of a withess's evidence and to disbelieve another, and that it is common practice so to tell the jury, but there may be circumstances such that for the jury to believe only part would be manifestly unsafe. The present case offers an example of such circumstances. The evidence relating to the finding of the keys was so closely connected to the evidence of the finding of the.drugs (which the jury was unable to believe) that we think the verdict on Count 3 was unsafe.

6. In addition it was contended on behalf of all the Applicants that the judge failed to direct the jury adequately on the burden of proof in relation to the rebuttal of presumptions. This argument related not only to Count 3 but also to Count 7. At the beginning of his summing-up the judge said:

"There is therefore this distinction between that presumption and the other presumptions which I will mention later. This presumption of innocence . remains until it is displaced by proof which satisfies you beyond reasonable doubt of guilty, the other presumptions can be displaced by evidence which satisfies you of the likelihood of the existence of a set of facts or circumstances which is the contrary of that particular presumption."

7. In relation to both Count 3 and Count 7 he several times said that the burden was discharged if there was a "likelihood" that the Applicants' stories were true arid specificly in relation to Count 7 he 'said:

"If you thought that [the 6th Defenant's]story that . he did not know, what it was could be true, you would find him not guilty."

It is argued that the over all effect of these directions was not,such as to indicate clearly to the jury what was the true burden of proof on.the Applicants, namely proof on a balance of probabilities. To use the words of Lord Diplock in Kwan Ping-bong v Reg. 1979 1 H.K.L.R. 1, 6, a.jury is bound to infer possession of drugs in a flat from possession of the keys to that flat

"unless they are satisfied that on the balance of probabilities it is wrong. So they must draw it even though they think it is equally likely to be right as to be wrong".

Thus it is the balance of likelihood and not merely the likelihood of a defendant's story which is material. It is apparent from the passage cited that something may be "likely" without being "more likely than not". On the one hand to leave the issue to a jury on the basis of "likelihood" could be unduly favourable to the defence. however, it is a word of such imprecision that a jury might, on the other hand, interpret it as requiring more than just a balance of probabilities, and it is this possibility which, Mr. Sedgwick contends, makes the summing-up in the present case unsatisfactory. We would be reluctant to hold that any particular form of words must be used to describe to a jury the degree of proof required to rebut a presumption and we say only that the phrase "established on a balance of probabilities" has withstood the test of time in the same way as "proof beyond all reasonable doubt". Both are brief and unambiguous and need no further explanation, and judges and magistrates would be well advised to use them. It is not enough to say simply that something must be "probable" or,"likely". In the present case we were not persuaded that the Jury must have appreciated that the burden on the defendant was much less than that on the prosecution.

8. The only point taken in relation to Count 6 was thatthe defence of the 6th and 7th Defendants was not adequately put to the jury. That defence was that at the time these two Defendants handled the suitcase it was empty, the items found in it by the police having been packed into it afterwards without their knowledge. There is no suggestion that the judge did not leave the issue to the jury:he clearly did. Counsel for the Crown has conceded before us that the defence was not put as fully as it might have been, but he contends that the Crown case was also not sufficiently put and that a fair balance was struck. In deciding whether an appellant's defence has been put adequately this court has to weigh conflicting principles: on the one hand the judge is not obliged to repeat to the jury all the evidence which has been given, but on the other he must leave it to the jury in a manner which does justice to both sides. We shall always endeavour nottobe critical of the omission of reference to particular items of evidence which were not vital to the defence, but rather to look at the summing-up as a whole and to ask ourselves whether the case was fairly put. Here the judge did not remind the jury of any of the evidence which might lend credence to the Appellants' assertion that the suitcase was empty when they handled it, but he did remind the jury of the evidence that the contaminated meat grinder was found in the boot from which the case had been taken. One might excuse the omission of any reference to the interval oftime between the handling of the suitcase by these two Appellants and its discovery by the police, but we think the omission to mention the evidence of Lam Yuk-chi that he had lifted the suitcase from the car in order to take out the jack, which he required for the purpose o￡ repairing the car's brakes, and that the case then appeared to be empty was a serious omission.

9. After anxious consideration we came reluctantly to the conclusion that a fair balance had not been struck and that the applications should be granted, the appeals allowed, all the convictions quashed and the sentences set aside. However we directed that the 6th and 7th Defendants be retried on Counts 6 and 7.

Penlington, J.

10. The facts of this matter have been fully set out by the learned Vice-President and I will not repeat them.

11. The evidence given in relation to the keys allegedly found on the 2nd accused was clearly unsatisfactory and as that evidence raised the statutory presumption against him, it was very important. I also agree that'the defence of the 6th and 7th accused on Count 6 was not put adequately to the jury. However I find myself unable to accept that the Judge's direction as to what was required to enable the accused to rebut the statutory presumption against them was such as to leave the jury with any doubt as to what that onus was.

12. The Judge said first of all that it was not proof beyond reasonable doubt. He went on to say that the presumption was rebutted if there is evidence contrary to it which is "likely" to be true. I would agree that the phrase "on a balance of probabilities" is to be preferred but a direction that the jury should regard the presumption as being rebutted if they think the accused's explanation is "likely" seems, if anything, to be in his favour.If the Judge had said "more likely than not" the direction could not have been challenged but I am unable to see what difference there is between that direction and the one given except that the jury might think that if there was an even balance the presumption is rebutted. That is not so.  (Kwan Ping-bong v. R. 1979 H.K.L.R.1).

13. As the jury has been told the onus on the accused was not proof beyond reasonable doubt I do not see how they could have interpreted the word "likely" in any way other than as "more likely than not" and I do not consider that as a misdirection, other than it may favour the accused. In summing-up the questions to be decided by the jury as to the state of mind of the 6th and 7th accused relative to the 7th count of possession the trial Judge said this:

14. That was clearly a direction which was highly favourable to the accused and must have removed any impression, if the jury had one, that the onus on the accused was any more than a balance of probabilities. It is true that at the request of Crown Counsel the Judge then gave a further direction and reverted to the use of the word "likely" but I still do not consider that could have caused the jury to be under any mistake as to the burden on the accused in rebutting the presumption.

15. I would not have granted the 6th and 7th accused leave to appeal on the 7th count.

1st November 1983.

Representation: