The Queen v. Pow Po Wo

CACC000338/1989

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BETWEEN

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Coram: Hon. Yang, C.J., Power JA and Sears J.

Date of Hearing: 20 February 1990

Date of Delivery of Judgment: 20 February 1990

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JUDGMENT

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The Judgment of the Court was given by Sears J.

1. On June 15th 1989, this Applicant was tried before Mr. Justice Barnett and a jury, charged with an offence of possession of dangerous drugs for the purpose of unlawful trafficking. She was convicted and sentenced to a period of imprisonment for eight years. She now seeks leave to appeal against that conviction. Her initial grounds of appeal have been amended by this Court, to take into account, certain directions given by the trial judge with regard to the presumptions raised under section 47(1) & (3) of the Dangerous Drugs Ordinance (Cap. 134).

2. The facts of the case were very short. She was carrying in a plastic bag a box, which appeared to be a bottle of 'Martell' brandy. She was told at the Lo Wu check- point, she would have to pay duty on that brandy, but when the box was checked at the duty counter, it was found to contain three packets of salts of esters of morphine, nearly a kilogram of No. 4 heroin. She gave an explanation to the police officers at that time that the box or brandy had been given to her by a relative to carry back to Hong Kong, where the brandy box would be collected by somebody else. The trial involved, in essence, a very short issue of fact, for the jury to resolve, whether at the material time she was carrying that brandy box, she knew that it contained dangerous drugs. The learned trial judge, when he came to direct the jury with regard to the presumptions which are raised under the Ordinance, properly told them that the real issue was the question of knowledge. But, he appeared to confuse the two presumptions raised under section 47 which go to the possession of the article containing the dangerous drugs and the knowledge of the nature of the drugs. It was never in issue that she was carrying the package containing the dangerous drugs, and was never in issue that she had at the material time possession over that package. The learned judge, nevertheless, directed the jury with regard to that first presumption by saying words such as this:

"So if you are satisfied so that you are sure that the accused had a box containing dangerous drugs and knew what was in that box, then you must presume or accept that the accused had possession of the drugs."

And he similarly made other directions which appeared to confuse the presumption of knowledge with the presumption of possession. At the conclusion of the directions with regard to the first presumption, the learned judge said these words:

"And having taken those matters into account, you have to reach a conclusion whether on the balance of probabilities the presumption as to possession is rebutted, that is to say, whether the accused knew of the presence of the drugs in the box."

That in our respectful opinion indicates an error by the trial judge with regard to the two presumptions.

3. Later in his summing-up, when he came to deal with the essential issue in the case and the important presumption raised under section 47(3) as to knowledge, he said these words:

"It is a matter for you to decide, members of the jury, whether that presumption is rebutted. But if you come this far, if you find the first presumption as to possession not rebutted, it seems to me unlikely that you will find the second presumption rebutted. However, it is a matter for you."

That direction in our respectful opinion is a misdirection in that it is telling the jury to equate the presumption of possession with that of knowledge, and it indicates clearly the confusion which existed with regard to those two presumptions.

4. Mr. Cross, appearing for the Crown, recognises the confusion in this summing-up. He says, nevertheless, the real issue was before the jury. Having regard to the totality of the summing-up, it is our view that the jury may well have been left in some confusion with regard to the approach they had to make as to these presumptions. The important factor in this case and the only issue was whether or not this lady knew what was in the box was dangerous drugs.

5. At the very least, this verdict is unsafe and unsatisfactory, and for that reason alone, it should be quashed. Therefore the application for leave is granted. We treat this application as the appeal, allow the appeal and quash the conviction.

6. Mr. Cross makes an application for a new trial; having regard to the totality of the evidence here and the nature of the misdirections, we are of the view that a new trial should be granted.

Representation:

Mr. I. G. Cross, ASCP and Mr. W. S. Cheung, Sr. CC for the Respondent.

Pow Po Wo, Appellant appearing in person.