HKSAR v. Kwok Wing Chak

CACC000354/1999

CACC 354/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 354 OF 1999

(ON APPEAL FROM HCCC NO. 373 OF 1998 )

Coram: Hon Stuart-Moore, V-P, Wong, JA & Woo. J in Court

Date of Hearing : 11 November 1999

Date of Judgment : 11 November 1999

_______________________

J U D G M E N T

_______________________

Wong, J.A. (giving the judgment of the Court) :

Introduction

1. The Applicant was charged with one count of trafficking in a dangerous drug and was tried before Deputy Judge Wong and a jury in the Court of First Instance. He was convicted after trial of the lesser offence of possession of a dangerous drug or simple possession. He was sentenced to imprisonment for 6 years. He seeks leave to appeal against conviction and sentence.

2. We deal with conviction first. The particulars of offence in the original charge of trafficking were as follows :

"KWOK Wing-chak, on the 5th day of August, 1998 at Oak Street near Anchor Street, Tai Kok Tsui, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 299.90 grammes of a mixture containing 225.68 grammes of heroin hydrochloride."

The Prosecution case

3. At about 7:30 pm on 5 August 1998, the Applicant was seen by two police officers in plain clothes who were patrolling in the Tai Kok Tsui district. He was looking around and acting nervously. The officers intercepted him and found 23 packets of suspected heroin hydrochloride in the handbag that he was carrying.

4. The 23 packets and its contents were subsequently sent to the Government Chemist for analysis and found to contain the quantity of dangerous drug as specified in the charge.

The Defence Case

5. The Applicant gave evidence. His evidence was that he never had the handbag in his possession. He said when he was going down to the street from his home, he saw police officers searching the contents of a rubbish bin. He asked them what they were doing and was told to mind his own business. He said he then saw the officers taking something out from the rubbish bin which, he said, the officers used to frame him by saying that he was holding the handbag.

Grounds of Appeal

6. There are in effect two substantive grounds of appeal. The third one is a cosmetic ground that the conviction of possession of a dangerous drug is unsafe and unsatisfactory and this ground does not require any separate consideration.

1st ground

7. We turn to the first ground which is framed in these terms :

"The learned Trial Judge erred in directing the Jury about the police impropriety in the following manner :-

'Well, it would be illogical for you to think that police would not frame up people, but then there was no suggestion that there was any grudge against this defendant by the police.'

in that the effects of this direction were that :-

(i) the police had no motive to frame the Applicant;

(ii) the police would not engage in impropriety unless they had a reason to do so; and

(iii) the jury could safely dismiss the Applicant's claim of frame up by the police officers."

8. We do not agree with Mr Wong's submission. What the judge said here is, in our judgment, a fair and balanced direction. We had drawn to our attention the decision in R v Tam Chun Fai (1994) 2 HKC p397 and p402C to 403D. In that case, the judge directed the jury in his summing up in this way :-

"But is it likely, in this case, that no less than six of them in the party would engage in a conspiracy to frame up the defendant out of no motive at all? If they were to embark on some impropriety, would they do it with a party of six? And if they had framed up the defendant, would they be so daring as to publicize it, saying that we have got a haul of drugs worth almost about $20,000? For what glory should they publicize the catch if it is a frame up?"

9. This seems to be in much stronger and more direct language than the passage quoted from the trial judge in the present case. In Tam Chun Fai, we agree that the other division of this Court, differently constituted, was perfectly entitled to conclude that the Appellant had been denied a fair trial as the judge's comments was tantamount to telling the jury that they could safely disregard the Appellant's claim of police impropriety. This is not the case before us. Tam Chun Fai is clearly distinguishable and we are not prepared to draw the same conclusion that the other division of this Court drew. Earlier in his summing up, the judge had told the jury at p2 N-P :-

"Equally, if, in the course of my review of the evidence I appear to express any views concerning the facts or emphasize a particular aspect of the evidence, do not adopt those views unless you agree with them."

10. The judge made it clear that the jury was not bound by what he had said in so far as his opinion on the evidence was concerned. We see no merit in this ground and reject it.

The 2nd Ground

11. The second ground reads :-

"The learned Trial Judge erred in directing the Jury or alternatively he failed to correct the Prosecutions's submission that :-

'It is the prosecution's case that the defendant was found to be in possession of the handbag which contained 23 bags of heroin hydrochloride. With that vast amount, the prosecution says that he must have known, or you can safely infer that he knew, the contents were dangerous drugs.'

in that the quantity of drugs alone, be it large or small amount, could not prove the Applicant's knowledge of dangerous drugs nor could it be acted as primary facts from which such knowledge could be inferred."

12. We will first examine what did the judge say on the question of possession. He started by repeating the prosecution case at p4 B-E.

"It is the prosecution's case that the defendant was found to be in possession of the handbag which contained the 23 bags of heroin hydrochloride totalling 225 grammes. With that vast amount, the prosecution says that he must have known, or you can safely infer that he knew, the contents were dangerous drugs."

13. It is to this passage that Mr Wong takes strong objection. The judge went on to say at F-M of the same page :-

"So what then is possession in the context of the present charge? Please note that you should not equate ownership with possession. In other words, one may possess an object even though one does not own it. A person has possession of an object if he knowingly has it in his physical and actual custody or otherwise was in his physical control and intends to have custody of it or to exercise control over it, as and when occasion requires.

Physical custody means that an object is on or about the individual's person. So, if the individual is carrying the object in his hand or in a pocket of his clothing, he has it in his possession if (1) he knows it is there; (2) he intends it to be there; (3) he's aware of its nature; and (4) he intends to exercise control over the object as and when required."

14. It is quite clear this is a correct statement of the law in so far as the question of possession is concerned. Indeed, Mr Wong concedes that the judge correctly directed the jury on the meaning and definition of possession. The judge went on to define possession in many other passages with which we need not concern ourselves following the concession made by Mr Wong. With regard to the statement of the prosecution which the judge recited in his summing up that Mr Wong raises strong objection to, we do not accept the submission of Mr Wong. It is, in our view, entirely proper for the jury to draw inferences from the amount of dangerous drug on the question of knowledge and indeed on the question of trafficking. There is no substance in this ground and it fails.

Conclusion

15. We are satisfied that there is no misdirection by the judge on the matters complained of by the Applicant. There is nothing in the summing up or in the evidence to cause us concern that the conviction is unsafe and unsatisfactory. The application for leave to appeal against conviction is dismissed.

16. The application for leave to appeal against sentence was abandoned by the Applicant, who was not legally represented on this matter. Accordingly it is dismissed.

Representation:

Mr Darryl Saw, S.C., DDPP & Ms Irene Poon, G.C., for DPP/Respondent

Mr Richard Wong (D.L.A.), assigned for the Applicant (re :conviction)

Applicant in person (re : sentence)