R. v. Leung Tim Fu and Another

CACC000001/1993

IN THE COURT OF APPEAL

1993, No. 1
(Criminal)

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Coram: Hon. Silke, V.P., Macdougall, V.P. & Penlington, J.A.

Date of hearing: 14 December 1993

Date of delivery of judgment: 14 December 1993

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J U D G M E N T

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Penlington J.A.:

1. These are applications for leave to appeal against conviction by Mr. Leong J. and jury on the 15th of December 1992 on two counts. The first, against both applicants, of trafficking in dangerous drugs and the second against the second applicant (D2) of possession of a dangerous drug for the purpose of unlawful trafficking. The drugs were 1,353.54 grammes of a mixture containing 598.84 grammes of salts of esters of morphine and 43.34 grammes of Methylamphetamine Hydrochloride.

2. The Crown's evidence was simple. Officers of the Customs and Excise Department were keeping observation on the 22nd of August 1991 and they saw the first applicant (D1) in the early morning taking a plastic bag from his home and putting it in a carrier basket on his bicycle. He then rode off and met D2 who was alone in a motor car and D1 handed the plastic bag over to him. D2 then drove away. He was followed and arrested outside a house in Sheung Pei Village, about 2 miles away. The bag was found in the glove compartment of the car and it contained the dangerous drugs which are the subject of the charges. There was no conversation between the two applicants when the bag was handed over and when they were arrested neither applicant made a statement.

3. There is no complaint made with the directions given to the jury as to the question of identification or, indeed, as to the directions on matters of fact that were to be decided by the jury. The judge told them that they had to firstly find whether D1 was the person who had carried the drugs on the bicycle and then given it to D2 in the car. Secondly were the contents of the bag the drugs which were described in the charges and produced in court. Thirdly:

"if so did each of the applicants know that the contents of the plastic bag were dangerous drugs."

Shortly after that direction the trial judge said to the jury that it was open for them to infer from the evidence that the defendants did know that the contents of the plastic bag were dangerous drugs and he pointed to certain evidence which might enable them to come to that conclusion. He went on and said:

"However before you come to that conclusion you should take into consideration that the defendants both of them have a clear record and that there is something you should weigh in your mind that persons without a record could they have managed to engage in the dealing of dangerous drugs. The matter is entirely for you. But I need to remind you that you would only draw such an inference, that is the inference of knowledge if that is the only logical and reasonable inference that may be drawn from the facts you have found established beyond reasonable doubt and not otherwise".

4. There could be no complaint whatever with that direction and it was clearly put to the jury that they had to be satisfied that these applicants knew what was in the package and they could only draw that inference if they considered that it was the only logical and reasonable one they could come to from the facts they had found. The judge make no reference, and this was clearly favourable to the applicants, that Section 47 of the Dangerous Drugs Ordinance Cap 134, contains a presumption of knowledge on the part of anybody who has anything in his physical possession containing dangerous drugs. In the absence of any mention of that presumption as to the applicant's knowledge the jury had to be satisfied beyond reasonable doubt simply on the evidence before them.

5. What is complained about by both counsel who appear for the applicants is a final direction which was given by the trial judge in response to a request by counsel for the Crown to define "trafficking". It is by no means certain that this was necessary because earlier in the summing up the judge had said that the prosecution's case against both defendants is that they dealt with the drugs in that one had handed over and the other had received the package. If so that would constitute trafficking so the jury were therefore aware that such dealing did constitute trafficking. However the trial judge did comply with the Crown's request and gave a further direction on trafficking. However he went on to say this:

"now possession means custody or control, it does not mean ownership. If a person has custody or control of dangerous drugs he is considered to be in possession of dangerous drugs."

It is contended that such a direction, because it did not mention the question of knowledge, undid what had gone before. We do not think that it did. This was a short trial and a short summing-up. Taking the summing-up as a whole and in particular the passages to which we have referred to relating to knowledge, there could be no question that the jury must have been fully aware that the question of knowledge was vital and neither applicant could be convicted if he did not know what was contained in the plastic bag which had been seen on the bicycle ridden by D1 and found in the car driven by D2. We do not consider these convictions to be in any way unsafe or unsatisfactory and the application for leave to appeal against conviction are refused.

6. Before leaving the matter we would just add that the judge directed the jury that if they convicted D2 on the charge of trafficking they should return a verdict of not guilty in respect of the second count of possession for the purpose of trafficking. That was not correct. He should have directed the jury that they need not return any verdict at all on the second count if they convicted D2 on the first one.

Representation:

Mr. G.J.X. McCoy (Karbhari & Cham) for 1st Applicant (D1)

Mr. Gary Alderdice Q.C. & Mr. A.K. Sakhrani (William Au & Co) for 2nd Applicant (D2)

Mr. D.G. Saw for Crown/Respondent