The Queen v. Chi Po Yeung and Another

CACC000348/1985

Headnote

Trafficking in Dangerous Drugs - Standard of proof applicable to evidence capable of rebutting presumption - Failure to direct thereon in circumstances where there is no evidence of any significance in this regard - Where there is evidence from which common sense inferences can be drawn it is not necessary for judge to give specific directions as to primary facts and to rejection of an inference if it is not compelling. It is sufficient if a clear direction as to onus of proof beyond reasonable doubt is given. Danger of looking at any passage of summing up in isolation from its content and from the summing up as a whole.

BETWEEN

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Coram: Hon. Sir Denys Roberts, C. J., Silke, J. A. & Power,. J.

Date of hearing: 4th February 1986

Date of delivery of judgment: 24th February 1986

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JUDGMENT

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Power, J. :

1. The applicants CHI Po-yeung, the 1st defendant, and LAM Hon-yau, the 2nd defendant, seek leave to appeal against convictions on a charge of possession of dangerous drugs for the purposes of unlawful trafficking. The 2nd defendant also seeks leave to appeal out of time against sentence. Both defendants were convicted on the 6th August 1985 after trial by judge and jury on a charge of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The evidence of the prosecution was that a police party, consisting of six police officers, was, on the 2nd February 1985, keeping the 2nd defendant under surveillance and that he was seen at about 9.25 a.m. leaving the Pok Wah Building in Shamshuipo, from where he proceeded by taxi to the Sun King Restaurant in Austin Road. He was followed by the police officers who observed him go to the first floor and join a person, later identified as AU Ka-chuen.

3. He talked with AU and shortly after went down with him to Austin Road, where they walked to and fro until about 10.40 a.m. when the 2nd defendant walked across the street to the entrance of the Hung Hi Yee Video Game Centre. Here he approached and had a conversation with the 1st defendant, who had arrived on the scene carrying a plastic bag marked with the name Tai Kwong Dry Cleaning Company. After a brief conversation the two defendants crossed the road and joined AU.

4. The 1st defendant then handed AU a plastic bag and, after another brief conversation, AU left the two defendants and went to a car park, next to the restaurant, from which he was seen "about a minute later" to drive vehicle CZ7769. AU was followed by some of the police officers and intercepted at Austin Road, near Chatham Road. The plastic bag which had earlier been handed to AU by the 1st defendant, was found in the back seat of the car. Inside the bag were 1559.07 grammes of a mixture, containing 265.75 grammes of salts of esters of morphine, in four plastic bags in a Yasaki shoe box.

5. The two defendants, after leaving AU, went upstairs to the Sun King Restaurant, where they were arrested shortly after the interception of AU by other police officers.

6. Both defendants gave evidence, denying any involvement with, or knowledge of, the dangerous drugs. The 2nd defendant said that he went by MTR on that morning to Austin Road, having arranged to meet the 1st defendant at the Hung Hi Yee Video Game Centre. He arrived at Austin Road at about 10 a.m. and then had a game at the Video Game Centre, while awaiting the arrival of the 1st defendant.

7. After he had played one game he saw AU, who was a casual acquaintance, known to him only as "Four-eyed Boy", in the middle of Austin Road outside the Sun King Restaurant. He greeted him by nodding his head, told him that he was waiting for someone and went back for another game. When the 1st defendant arrived, they went to the Sun King Restaurant, where shortly afterwards they were arrested. He denied that AU had been carrying any plastic bag when he greeted him.

8. The 1st accused, in his evidence, said that he had arranged to meet the 2nd accused at the Video Game Centre and that after doing so they went to the Sun King Restaurant, where they were arrested.

9. The jury returned verdicts of guilty against both defendants. The 1st defendant was sentenced to imprisonment for nine years and the 2nd was sentenced to imprisonment for ten years.

10. Mr. Macrae, for the 2nd defendant, submitted that the Judge had erred, at the close of the evidence for the Crown, by failing to rule that the 2nd defendant had no case to answer. We are satisfied that there is no merit in this ground, as there was clear evidence upon which the jury, properly instructed, could have arrived at a finding of guilt.

11. Another ground of appeal taken by D2 was that certain of the evidence of the police officers who conducted the operation "was inadmissible and/or prejudicial and ought to have been excluded". The officers had said that D2 was a "target" under surveillance, which was being kept, according to one officer, because "there would be a drug transaction".

12. We see nothing objectionable in the evidence that D2 was under surveillance. It was proper to place such evidence before the jury to enable them to understand fully the circumstances of the arrest. Mention should not, however, have been made of the fact that D2 was a "target" who might be involved in "a drug transaction". However, the trial judge dealt with this evidence in his summing-up when he said :

"Of course, you won't conclude that the 2nd accused must be guilty of this charge because he was being watched by the police. You would be quite wrong to assume that he was guilty because he was under police surveillance. The police get all sorts of information about people and they sometimes feel it is worth following up. Some of this information may be useful, some of it may be true, some of it may be very inaccurate, some of it may be downright lies inspired by malice, and the police have to do the best they can in following up such information and seeing what it comes to."

We are satisfied that this direction ensured that, although this evidence should not have been admitted, the jury would attach no weight to it.

13. We turn next to the contention of both defendants that the trial judge gave no direction as to the standard of proof required to establish facts sufficient to rebut the presumptions arising under sections 46 and 47 of the Dangerous Drugs Ordinance. The trial judge dealt with these presumptions in two passages. The first reads as follows :-

"There is a rebuttable presumption in our laws that persons found in possession of more than a very small amount of a dangerous drug are presumed to be in possession of it for the purpose of trafficking in it and not merely for their own personal consumption, and that really is a matter of common sense. But it is laid out in Section 46 of our Dangerous Drugs Ordinance, which says:

'Any person proved or presumed to have had in his possession more than some very tiny amounts of dangerous drugs shall, until the contrary is proved, be presumed to have had such dangerous drug in his possession for the purposes of trafficking therein.'

That is a rebuttable presumption. In other words, an accused person could show that the drugs he had in his possession were not for trafficking, they were only for his personal consumption, which is of course a much less serious matter and would attract a much smaller penalty; and he wouldn't have to establish that with the same degree of certainty as the Crown normally has to satisfy the jury about things, that is to say, "beyond reasonable doubt".

But the quantity of drugs with which this case is concerned is so enormously greater than the minimum laid down for this presumption of trafficking to arise that it hardly falls for your consideration.

Nobody for a moment with any knowledge of the drug scene could imagine that 1½ kilogrammes of heroin mixture was being held by an individual for his own personal consumption, considering that 0.1 of a gramme is the standard single shot".

The trial judge did not explain to the jury the standard of proof required to establish facts which would rebut the presumption, because he considered, sensibly in our view, that no question of rebuttal of this presumption arose. He told the jury, in effect, that, if such a huge amount of drugs was found in the possession of any person and no explanation was advanced for that possession, common sense must dictate that it was in that person's possession for the purpose of trafficking. Thus, in the circumstances of the present case, no importance can be ascribed to the failure of the judge to direct the jury as to the standard of proof to be applied in the rebuttal of the presumption arising by virtue of s. 46.

14. Later in his summing-up the trial judge said:

"There is another presumption in our statute law about dangerous drugs which, like the earlier presumption which I have mentioned to you, is really a matter of enacted common sense, and that is this:

"Any person who is proved to have had in his possession or custody or under his control anything containing a dangerous drug shall, until the contrary is proved, (simply upon the balance of probabilities), be presumed to have had that drug in his possession. And any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.'

But at the end of the day the burden of proving the charges falls on the Crown".

This passage is criticized on the ground that the trial judge did not explain the meaning of the phrase "the balance of probabilities" nor the standard of proof required to rebut the presumption as to knowledge of "the nature of the drug". While there is substance in these submissions, we do not consider that his failure to explain was of any real significance.

15. The main issue was whether or not the 1st defendant was in possession of the bag, as the police said he was, and whether or not the 2nd defendant acted in the way in which the police said he did. There was no evidence from either defendant aimed at displacing any presumption as both were contending that, as they never had possession of any dangerous drugs, no presumptions arose.

16. Both defence counsel quite properly pointed out that the presumptions can be displaced by evidence coming from any source and that it is for the jury to make its determination upon the evidence as a whole. It was suggested that, in the circumstances surrounding the incident, i.e. the time of meeting and the public nature of the place in which it occurred, the jury might well have found facts of evidential value sufficient to displace the presumption.

17. We are satisfied that there is no merit in this argument as there was no evidence of any significance from any source which was capable of rebutting the presumption and that the failure of the trial judge to explain the onus of proof in the above context was not a material irregularity.

18. The 1st defendant also suggested that the summing-up was defective in that the trial judge had failed to explain to the jury adequately or at all the law relating to possession, custody and control of a dangerous drugs. We find no substance in this ground, as the 1st defendant was, if the evidence of the police officer was believed by the jury, and it clearly was, in possession, custody and control of the plastic bag and whatever was contained therein.

19. Both defendants complained that the learned trial judge had not adequately instructed the jury as to the inferences that might be, drawn from proven facts. Both counsel referred to the direction of the learned trial judge where he told the jury that:

"You'll have to accept what I say about matters of law; but about matters of fact you are entirely free agents, you'll now come into your own as the real judges of this trial - people who have to make the decisions on the facts."

It was suggested that this direction might have given the jury the impression that, after a consideration of the facts, they were entirely free to arrive at whatever inferences, be they compelling or not, appealed to them. This seems to us to overlook entirely the fact that the trial judge had told the jury:

"The Crown has to satisfy you with the guilt of either of these accused so that you are quite sure about it before you can convict, and if you are not sure about it your duty is to acquit. If you are left in a state of mind that 'Well, perhaps he was involved but were not entirely sure' your duty is to acquit",

and that he went on to tell them that they must arrive at a finding of guilt only "if the evidence points with complete certainty" thereto.

20. It was also submitted that the trial judge should have told the jury that they had to be satisfied beyond reasonable doubt as to any primary facts and that they should not draw any inference from these facts, unless it was the only reasonable inference.

21. We do not consider that it is necessary for a judge to give such a direction. If there is an inference which common sense suggests should be drawn, a judge is not obliged to describe to a jury what primary facts are and what inferences can be drawn therefrom. It is sufficient to direct the jury in clear terms that the Crown must, prove its case beyond any reasonable doubt. Jurors are told that they must use their common sense and the drawing of inferences is very much a use of common sense. If jurors are told that they must be completely certain of guilt, they could not fail to appreciate that they must be equally sure about any inference before they act thereon.

22. Issue was taken, on behalf of the 1st defendant, with the failure of the judge to direct the jury that they could only infer that the bag found in the back seat of AU's car contained drugs at the time when it was first seen by the police officers if that was the only reasonable inference that could be drawn. Given the very short time that elapsed between the disappearance of AU into the garage and his re-appearance driving the car, we consider that the trial judge was quite right to leave this matter to the jury, with a strong direction as to the overall onus of proof.

23. The 2nd defendant complained that there had been no specific direction by the judge as to the inference with regard to joint possession which might be Drawn from the evidence of the police officers that he greeted the 2nd defendant and walked across Austin Road with him to meet AU and from his presence when the plastic bag was handed to AU. We do not consider that it was necessary for the trial judge to do more than he did, which was to direct the jury that, the evidence being that the 2nd defendant was not in physical possession, what it must determine was whether there was evidence to establish that he had effective dominion or control over the bag.

24. There was a final complaint from the 2nd defendant arising out of the following passage which occurred at the very end of the summing-up:

"Mr. Smith (Crown Counsel) : My Lord, I ask your Lordship to explain to members of the jury what at law constitutes possession, custody or control bearing in mind, your Lordship, that I have made  reference to such things as constructive possession, custody, and I would also ask your Lordship to explain to members of the jury what constitutes at law aiding and abetting, and your Lordship, finally, what effect a finding of aiding and abetting would have in respect to the charges laid.

Court : I didn't myself think that those remarks that you made were really particularly helpful or relevant in this particular case and that is why I refrained from moving into those spheres.

Mr. Smith : Play it please my Lord.

Court : To convict these men, you have got to be satisfied that in the case of the 1st accused he was actually carrying a bag knowing that it contained heroin and in relation to the 2nd accused that he was aware that the 1st accused was carrying that bag and was aware that it contained heroin and was assisting the 1st accused in directing him towards the man AU so that the bag could be transferred to AU. That is the crux of the case in relation to the two accused."

It is submitted that here, for the first time, the judge had suggested to the jury that it was open to them to convict upon the basis that the 1st accused was aiding and abetting the 2nd accused. Appellate courts have often remarked upon the danger of taking a passage or phrase from a summing-up and looking at it in isolation from the summing-up as a whole. This Court was asked to look at this passage in isolation and to say that it amounted to a direction on aiding and abetting and that the judge had failed to give a further necessary direction to the jury that they were not entitled, if they came to consider aiding and abetting, to rely upon the presumptions, but must rely only on such inferences as were open upon the proved facts.

25. We are satisfied that it is wrong to suggest that the judge was, for the first time, at the very end of the summing-up, suggesting to the jury that they could deal with the 1st defendant upon the basis that he was an aider and abettor. If the quotation set out above is examined, and not just its final passage, it seems to us quite clear that this was not so.

26. When the summing-up is read as a whole, it is plain that the judge was directing the jury, and that the jury must have understood that they were being so directed, that they could return a verdict of guilty only if they were satisfied that the 2nd defendant was in joint possession of the plastic bag with the 1st defendant. The jury, when they heard the words "was assisting the 1st accused" would have placed those words in the context of the summing-up as a whole and would have directed their minds towards the questions which the judge had already posed, i.e. was the 2nd defendant in joint possession of the bag with the 1st defendant and was he directing the 1st defendant towards AU so that he could transfer the bag to him?

27. The applications for leave to appeal against conviction are refused.

Representation:

Mr. Robert Whitehead instructed by Michael O'Cock & Partners for 1st Appellant/Defendant

Mr. Andrew Macrae instructed by So & Karbhari for 2nd Appellant/Defendant

Mr. J. L. Abbott, Counsel for Respondent