Au Wai v. The Queen

CACC000296/1979

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Coram: Roberts, C.J., McMullin and Trainor, JJ.

Date of Judgment: 10 August 1979

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JUDGMENT

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1. The appellant, Au Wai, seeks leave to appeal against his conviction and sentence on two charges. The first was having in his possession dangerous drugs for the purpose of unlawful trafficking, namely an amount of 395 grammes of prepared opium and 83 grammes of opium dross. The second was possession of a pipe fit and intended for the smoking of a dangerous drug.

2. He was sentenced to two and a half years' imprisonment on the first charge and six months' on the second the sentences to run concurrently. He also appeals against these sentences.

3. So far as the facts are concerned, it is sufficient to say that the amount of opium and opium dross and the pipe described in the charges were found in a cubicle rented by the defendant. He did not dispute his possession of them but asserted that all the opium and opium dross was for his own consumption only.

4. Mr. Kotewall, on his behalf, has advanced a number of arguments with which I will deal in the order in which they appear in the notice of additional grounds of appeal.

5. First, it was suggested that the judge failed to give sufficient weight to the various articles found in the cubicle, which clearly indicated that the applicant was an addict who required opium for his own consumption.

6. The judge, in the course of his reasons for verdict, makes several reference to the fact that the defendant was an addict of long standing. In one passage he refers to the defendant telling the court that he was 68 and had been a drug addict for over 40 years. Later in his reasons, he refers to the evidence of the defendant that the various exhibits were his and that the opium dross found in the defendant's cubicle was the accumulation of two months' scraping from the pipe after smoking and that the rest of the paraphernalia was also used by him in smoking.

7. At page 49 of the record the judge observes that having regard to the evidence of the financial status of the defendant it was improbable that he would pay this amount, [he was referring to the amount which the defendant said he paid for the opium,] notwithstanding "his addiction".

8. We are therefore satisfied beyond any doubt that it was clearly in the judge's mind that the defendant was an addict of long standing and that the equipment found in the cubicle was used by the defendant for the purposes of smoking.

9. Second, it was suggested that the judge had given undue weight to the amount of opium and to the financial status of the defendant.

10. As to this, we would only observe that in cases of possession for the purpose of unlawful trafficking, the amount of the dangerous drug is crucial, since it is a crucial factor when a court has to determine whether or not, on the balance of probabilities, a defendant has displaced the presumption, if one has arisen under section 45 of the Dangerous Drugs Ordinance.

11. The financial status of the accused was, in the circumstances of this case, an essential factor which the judge had to take into account, and did take into account very fully after careful examination, in deciding whether or not the defendant's story that he had bought the whole of the opium for his own consumption could reasonably be true.

12. Third, the most substantial ground advanced by Mr. Kotewall, with great clarity and persuasiveness, was that there had been a misdirection by the judge as to the burden of proof required and that he failed to direct himself that the Crown must establish the guilt of the accused beyond reasonable doubt.

13. We were referred to the case of Chan Siu-shing and Others v. R.⁽¹⁾. At page 498, Mr. Justice Huggins considers the burden of proof, in cases where a presumption arises under the Dangerous Drugs Ordinance. He observes-

"In truth the burden of proof is always on the Crown to establish the guilt of a defendant beyond all reasonable doubt. Guilt is something which has to be inferred from primary facts and the burden of proving beyond all reasonable doubt such of those primary facts as have to be proved is, equally, always upon the prosecution. Sometimes one or more of the primary facts from which guilt could be inferred do not have to be proved at all because a statute prescribes that upon the fulfilment of prescribed conditions those facts are to be presumed. In so far as those conditions consist of the proof of facts the burden of proof is, once more, upon the prosecution and the standard of proof required is proof beyond all reasonable doubt. The effect of a presumption which is not rebutted is, therefore, to allow an inference of guilt to be drawn from facts which would not otherwise justify such an inference: the fact presumed does not have to be proved beyond all reasonable doubt but the guilt of the accused does."

14. As we interpret the observations of the judge in that case, the position is that the Crown must discharge the burden of proving beyond reasonable doubt the primary facts which must be established before a presumption under the Dangerous Drugs Ordinance is activated.

15. However, once the Crown has established these primary facts beyond reasonable doubt, the accused must then, in order to discharge the presumption, satisfy the court of his explanation on the balance of probabilities.

16. It was suggested by Mr. Kotewall that, at the end of this process, the judge should have reconsidered the whole of the evidence again and reminded himself of the burden which lies on the Crown to establish the guilt of the accused beyond reasonable doubt.

17. We asked him whether he were able to suggest to us a set of circumstances in which, the primary facts having been established which gave rise to the presumption, and the defendant having failed to discharge the burden which lies upon him under that presumption, there could nevertheless reasonably have been an acquittal.

18. As we understood it he was not able to do so, nor have we not been able to think of such a set of circumstances ourselves. It is possible that they may exist, but for practical purposes it appears to us that, once the Crown has established the primary facts beyond reasonable doubt and the accused has failed on the balance of probabilities to overcome the presumption, a conviction must normally follow.

19. Mr. Kotewall drew our attention to the recent Privy Council case of Kwan Ping-bong v. R.⁽²⁾. This was an appeal from a decision of this court and was concerned with a conviction for trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance.

20. The trial judge had directed the jury as if the presumption had been activated. In fact, however, the prosecution had not established beyond reasonable doubt, or indeed at all, certain of the primary facts which had to be proved before the presumption could have come into effect. Consequently, the Court of Appeal of Hong Kong was obliged to find that there had been a misdirection by the judge. However, this court applied the proviso and upheld the conviction.

21. The Privy Council ruled that a misdirection as to the onus of proving an essential fact in issue at the trial seldom provided an appropriate case for the application of the proviso. Lord Diplock observed-

"In the instant case the misdirection was as to the onus of proving what was, in effect, the only issue in the case that was seriously contested. The guilt or innocence of the appellants defended on it. In their Lordships' view a verdict of guilty based on this misdirection cannot be other than unsafe and unsatisfactory. The conviction must be quashed."

22. During the course of his judgment, Lord Diplock made a number of observations as to the burden of proof in relation to the proviso. As we understand the effect of his observations, he was saying that where the presumption is properly activated, the burden lies upon the defendant to convince the court that his story is true on the balance of probabilities. However, where the presumption is not activated, there remains upon the Drown its normal burden to show beyond reasonable doubt that the explanation of the accused was not "possibly true", to repeat the phrase which this court used when considering the same appeal at the earlier stage. On this interpretation of Kwan Ping-bong the trial judge's direction on the burden of proof, which is to be found at page 48 of the record, was a correct one.

23. For these reasons we refuse leave to appeal against conviction.

24. With regards to sentence, our attention has been drawn to Cheung Sum-kok v. R.⁽³⁾, in which Mr. Justice Pickering, delivering the judgment of this court, considered a number of sentences which had been imposed in cases of possession of opium.

25. It is clear from his judgment, with which we agree, that a real, and proper, distinction can be drawn between the possession of opium and the possession of hard drugs for the possession of unlawful trafficking.

26. In Cheung Sum-kok the appellant was found in possession of 2,337 grammes of prepared opium for the purpose of unlawful trafficking. His sentence of three and a half years' imprisonment was reduced to two and a half years. In that judgment Tang So v. R., a 1973 Criminal Appeal, was quoted; in the latter case the amount in possession of the accused was 227 grammes of opium and the sentence of eighteen months' imprisonment was reduced to nine months.

27. The quantity in this case was 395 grammes of prepared opium and a further 83 grammes of opium dross. On the basis of Cheung's Case the sentence of two and a half years passed on the accused, Au Wai, was too high. We also take into account that he is an old man of almost seventy. We think it would be proper in these circumstances to allow the application to appeal against sentence, to quash the sentence of two and a half years and impose in its stead a sentence of fifteen months.

Representation:

Kotewall (H.H. Lau & Co.) for appellant

Murphy for crown

(1) 1974 H.K.L.R. 493

(2) 1979 2 W.L.R. 433

(3) Crim. App. 1977 No. 809