HKSAR v. Lau Suk Han and Another

CACC000372/1998

CACC372/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 372 OF 1998

(ON APPEAL FROM HCCC 218 OF 1997)

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Coram: Hon. Chan, C.J.H.C., Stuart-Moore, V.-P. & Mayo J.A.

Date of Hearing: 25 May 1999

Date of Delivery of Judgment: 15 June 1999

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

1. On 2nd July 1998, these applicants (D1 and D2) were convicted by a jury of trafficking in dangerous drugs and each was sentenced by Deputy Judge Lugar-Mawson (as then he was) to twenty one years' imprisonment. D1 and D2 faced separate counts of trafficking in heroin on 14th January 1997 at Kai Tak Airport. The quantities of narcotic content in the mixtures in counts 1 and 2 against D1 and D2 were just under and just over 4 kilogrammes respectively. Each now seeks leave to appeal against conviction and sentence. They are represented by Mr. Macrae only so far as the former application is concerned.

2. The facts can be simply stated. D1 and D2 had travelled together from Cambodia by a Dragonair flight to Hong Kong. They disembarked as transit passengers en route to Canada. They had a connecting Cathay Pacific flight. As they went to board this flight, they were intercepted by Customs Officers. D2 was in possession of both their air tickets which had luggage tags attached to one of them. D1 was carrying her own boarding pass.

3. The prosecution's case was that D1 and D2 were escorted to the place where the Cathay-flight aeroplane was parked. Two suitcases matching the numbers shown on the luggage tags were taken from the aeroplane and placed on the apron beneath it. These cases were locked. D1 and D2 were immediately able to recognize their suitcases. Furthermore, D1 opened her blue suitcase with a key taken from her handbag. The black suitcase, which D2 had identified, was opened after she had supplied the code number 973 which opened the combination lock.

4. Heroin, in almost pure form, was found in almost the same quantity in each bag. Both quantities were wrapped in similar fashion.

5. D1 and D2 were arrested and, after caution, said nothing.

6. At trial, their defence was that they had been travelling with two others, a married couple who were their friends, from Cambodia to Canada via Hong Kong. They knew them as "Ah Wah" and "Ah Mei". Ah Wah had checked in these cases at the airport in Cambodia and, unbeknown to them, the luggage tags had been stapled to one of their tickets. At Hong Kong, Ah Wah received a pager call. He returned after some minutes to announce that he would have to stay in Hong Kong. Ah Mei said that she would stay with him, and that they planned to take a flight to Toronto next day. Ah Wah asked D1 and D2 to collect their suitcases on arrival in Canada and he gave the key and the combination number necessary for the cases in case Canadian customs wanted to inspect the cases.

7. The defence put forward on behalf of D1 and D2 amounted to a complete denial of any knowledge of the existence of dangerous drugs in the suitcases which in any event belonged to two other people who had unexpectedly terminated their journey in Hong Kong.

8. There are four grounds of appeal. Ground 4, which was a matter of some complexity, involving the possible calling of evidence, and a considerable body of case-law, is no longer pursued. So far as this is concerned, a written argument was only served on the court on the day before the hearing of these applications and no reference was made to the abandonment of ground 4. Furthermore, the court had given a direction that the written argument was to be supplied seven days in advance of the hearing. Although that document is dated 20th May 1999, it was not served on the court until 24th May, 1999. Mr. Macrae has tendered an apology for this, but no explanation. We take the view that this was a discourtesy to the court on both counts and we hope that counsel will ensure that this does not happen again. If grounds are to be abandoned, notice should, if possible, be given both to the court and to the respondents to avoid unnecessary work being done on them. In this case, the Respondent was told the day before the hearing of the abandonment of ground 4. Inexplicably, the court was not so informed. In addition, when a direction is given that a written argument is to be sent seven, or more usually ten days, in advance this is a direction of the court that is intended should be complied with and not treated as if it can be ignored.

9. Turning now to the first of the grounds of appeal, it is submitted that the judge:

"directed the jury on the question of each Applicant's knowledge of what was in the respective suitcase as follows:

'On this issue the law provides that if it is proved beyond reasonable doubt that someone is in possession of anything which contains a dangerous drug or, the keys to a bag, or a similar container, which contains a dangerous drug, they are presumed to have had the dangerous drug in their possession until the contrary is proved. That is expressly provided for in the Dangerous Drugs Ordinance.' (p.16D-G)

Such a direction was wrong in law since the said presumption operated only upon proof of 'physical' possession." (Emphasis supplied.)

10. The presumptions relating to possession and knowledge of dangerous drugs are set out in section 47 of the Dangerous Drugs Ordinance, Cap.134. This provides:

"(1) Any person who is proved to have had in his physical possession-

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

(c) (Repealed 62 of 1994 s. 6)

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) 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 such drug." (Emphasis supplied.)

11. In a very carefully structured summing up, the judge tailored his directions as to possession of the drugs in a way which he obviously considered was most likely to help the jury on this issue. Before he began his directions on the presumptions, he had emphasized to the jury the direct conflict in the evidence. He said at page 14L:

"It is the defendants' case that they did not check those cases on to the flight at Phnom Penh airport, the man 'Ah Wah' did that and he consigned them in their names without their knowledge."

12. A little later the judge said at page 14R:

"It is the prosecution's case that, regardless of who actually checked the cases on to the flight at Phnom Penh airport, the blue suitcase and the keys to it were in the 1st defendant's possession, and the black suitcase, which has no keys because it has a code combination lock, was in the 2nd defendant's possession. The first thing you have to be satisfied of, members of the jury, from the evidence, is that the prosecution has proved that to you beyond reasonable doubt in respect of each defendant."

13. The judge then went on to give illustrations of what possession meant. Some of the examples amounted to physical possession and others were illustrations of what did not amount to physical possession. The word 'physical' did not, unfortunately, feature in the illustrations he gave.

14. Shortly after giving these examples, the judge turned to the presumption under section 47(1)(a) of the Ordinance in which it is accepted he again failed to qualify the word "possession" with the word "physical". However, the Respondent has argued that this could have made no difference because in effect the summing up was so carefully tailored to the circumstances that it was physical possession or nothing which the Defendants must have had in relation to the suitcases if their stories were rejected, as clearly they were, by the jury.

15. At a later stage, at page 24J of the Appeal Bundle, the judge continued by saying:

"But what is disputed - and it is very much disputed - is the prosecution's claim that the 1st defendant and the 2nd defendant identified the two suitcases as being theirs to the customs officers investigating this case. And it is very much disputed that the 2nd defendant gave the customs officers the code number for the combination padlock on the black suitcase."

16. Later again, the jury were clearly and precisely told that if the defendants were to be believed or even if their stories "may be" true, the defendants could not be in possession of these suitcases and that they must, if that were so, be found not guilty.

17. It is unnecessary at this stage to set out these directions more fully as they need to be considered in greater detail when we come to deal with grounds 2 and 3. Suffice it to say, it seems to us that the judge, in his directions to the jury, was confining the scope of possession to what happened on the apron under the aircraft at Kai Tak. At no stage did the judge widen the ambit of what might amount to proof of physical possession by directing the jury that evidence proving the defendants to "have had physical possession" could extend to proof that these were their suitcases and their responsibility from Cambodia. Perhaps the judge felt that this was an unnecessary complication. The evidence, after all, of the defendants readily identifying their suitcases with key and code to match them had been straightforward. The issue for the jury was whether that evidence was to be believed. If the Customs officers were believed, there was overwhelming evidence to show, both at Kai Tak and earlier, the defendants to have had physical possession of them.

18. In these circumstances, it is our opinion that the omission of the word "physical" was immaterial because the directions on the evidence gave the same effect as if the words "physical possession" had been spelt out for the jury.

19. Mr. Macrae pointed out that even if the Customs officers' evidence was believed, this did not necessarily mean that the Defendants' story about Ah Wah and Ah Mei had been disbelieved. That is perfectly true, but the judge had directed the jury to acquit the defendants if that was or might be so. All the evidence pointed to the defendants having had the suitcases in their physical possession once the story they told had been rejected by the jury.

20. We were reminded by Mr. Saw, S.C., on behalf of the Respondent, that in fact the jury was told that physical possession had to be established at a time when the jury returned with questions relating to possession and the presumptions arising from it. At that stage, the judge twice read out section 47(1) and (2) of the Ordinance, this time correctly including on both occasions the word "physical". Standing by itself, we were not impressed by the argument that this was a sufficient direction without further explanation to the jury, but taken together with the evidence and the examples given, we are satisfied the jury could have been in no doubt that possession, in the present context, meant physical possession.

21. It has to be said that in relation to D1, the argument was in any event purely academic. She was in possession of a key to her suitcase which brought into effect the presumption under section 47(1)(b) of the Ordinance. So far as D2 is concerned, although the issue was raised during the course of argument as to whether a code number such as that held by D2 could also amount to a "key" where, in modern times, keys take many different forms to open locked items such as cars, safes and cases, we do not need to decide this issue. There was, we are satisfied, no substance in ground 1.

22. Moving to grounds 2 and 3 which can be dealt with more conveniently together, it was Mr. Macrae's submission that:

"2. The Judge's directions on the presumptions were inaccurate, misleading, and (in the case of the second Applicant) inapplicable. Furthermore, given the jury's questions after retiring, they were evidently confusing.

3. The Judge's directions on the standard of proof applicable to the Applicants' rebuttal of the presumptions were confusing. In particular, he erred in law in directing the jury that if either applicant:

'failed to satisfy you that it is probable that she was not in possession (of the contents of the suitcase) ... you could apply the two presumptions and find that she was in possession (of the contents of the suitcase) ..."

23. While the prosecution's case against D1 was that she was in possession of the blue suitcase and the key, the case against D2 was only that she was in possession of the black suitcase.

24. Mr. Saw, replying to the second ground, said that, on the contrary, the judge had given clear, step-by-step directions as to the approach the jury should take in respect of the presumptions. He submitted that the fact that the jury came back to ask two questions was no evidence that there had been confusion, and that it would be pure speculation to consider what might have been in the minds of the jury before their questions were asked. In any case, submitted Mr. Saw, so far as both grounds are concerned, the further directions given by the judge were accurate and more than sufficient.

25. Obviously, to test these assertions, it is necessary to look at some of the passages from the judge's summing up both before and after the jury's questions were asked. In his earlier directions on the law, the judge said:

"Provided that you are satisfied beyond reasonable doubt that (the) two defendants imported dangerous drugs into Hong Kong, the act of importing by itself amounts to trafficking ....." (page 13N-Q)

"What the prosecution have to prove to you in respect of the 1st defendant and the 1st count is not merely that the blue suitcase, exhibit 2, containing heroin was brought into Hong Kong ....., they also have to prove that she possessed that blue suitcase and that she possessed the heroin in it knowing that dangerous drugs were in it." (page 13Q - page 14B)

"And you have to be satisfied on all of those matters beyond reasonable doubt before you can convict either defendant." (page 14G-H)

"The first thing you have to be satisfied of ..... is that the prosecution has proved that (i.e. possession of the suitcase by the Defendant) to you beyond reasonable doubt in respect of each defendant." (page 15A-C)

"Should the prosecution succeed in proving to you beyond reasonable doubt both that the 1st defendant was in possession of the blue suitcase and the keys to it, and that in that blue suitcase there was dangerous drug ..... the prosecution then has to prove to you that she knew what was in the blue suitcase." (page 15N-R)

"On this issue the law provides that if it is proved beyond reasonable doubt that someone is in possession of anything which contains a dangerous drug ....., they are presumed to have had the dangerous drug in their possession until the contrary is proved." (page 16D-G)

"..... how is the contrary proved? Well, it is not proved to the high standard of proof beyond reasonable doubt which the prosecution always has to meet when it has to prove something. It is proved by the defendant showing on all the evidence - and that is all the evidence led at the trial - that it is probable, which means more likely than not, that he, or she, did not know that dangerous drugs were in that container ..... This is what lawyers call the test of the balance of probabilities." (page 16H-M)

"..... then it is for her, the 1st defendant, to satisfy you from the evidence ..... that it is probable, more likely than not, that she did not possess the heroin ..... Lawyers call that 'rebutting the presumption'." (page 16R - page 17D) (Emphasis supplied.)

26. He then continued at page 17D-M:

"..... should the prosecution succeed in proving to you that the 1st defendant was in possession both of the blue suitcase and its contents, the heroin, they then have to prove to you that she knew the nature of the dangerous drugs which were in the blue suitcase." (page 17M-P)

"..... there is no suggestion in the case that if the 1st defendant was in possession of the heroin in the blue suitcase ....., neither girl did not know what they were. However, I have to tell you that our law provides that, if it is proved or presumed that someone is in possession of a dangerous drug, he is presumed to know its nature unless the contrary is proved by the defendant showing on all the evidence ..... that it is probable - more likely than not - that they did not know the nature of the drug...... it is really not an issue in this case because there never has been any suggestion that if either defendant was in possession of the heroin contained in the two suitcases, she did not know what it was." (page 18D-R)

"If you believe the defendants are telling the truth, that is the end of the matter. The prosecution will have failed to have proved its case and the defendants must be acquitted of the charges they face. Even if you believe that it may be that the 1st defendant was not in possession of the blue suitcase ..... that would mean that you entertain a doubt about those matters and that would mean that the prosecution has failed to prove the vital element of its case to you. In those circumstances, you must give the benefit of doubt to the 1st defendant ..... and find each of them not guilty of the respective charge each faces." (page 50Q - page 51E)

"Even if you are sure, even if you are satisfied beyond reasonable doubt that the 1st defendant was in possession of the blue suitcase ..... but you find that they have made you feel that it is probable - more likely than not - that they were not in possession of the contents of their respective suitcases, the heroin, or that it is probable - more likely than not - that, although they were in possession of the contents, they were not aware that dangerous drugs were in their respective suitcases. That would mean that they had rebutted - successfully challenged - the two presumptions I spoke to you about, and you must, therefore, find them not guilty, of the respective charge each faces." (page 51D-L)

"Members of the jury, it is only if you are sure that the 1st defendant was in possession of the blue suitcase, and that she has failed to satisfy you that it is probable that she was not in possession of its contents, and has failed to satisfy you that it is probable that she did not know the nature of the dangerous drugs in the blue suitcase, that you could apply the two presumptions and find that she was both in possession of the blue suitcase's contents - the heroin, and knew the nature of the dangerous drug, and find her guilty of the 1st count on the indictment." (page 51M-R) (Emphasis supplied.)

27. It is the words, in the final paragraph cited, which are the subject of ground 3.

28. The judge gave directions in respect of D2 along exactly the same lines as he had given for D1. He also directed the jury to consider the case of each defendant separately.

29. Approximately two hours after they had first retired, the jury returned with two questions which were read into the record by the judge at page 56C as follows:

" 'Does the prosecutor have the need to prove the two defendants have the knowledge of contents inside the suitcase?'

The second question is:

'Does the defence have the need to counter-prove that the defendants have no knowledge of contents inside the suitcase if it is satisfied that the defendants are in possession of the suitcase?' "

30. The judge went on to give the following directions in answer to the jury's questions. He said:

"So far as the first question is concerned, it is a stage process. The prosecution must prove to the criminal standard of proof, that is proof beyond reasonable doubt, proof so that you are sure, that the suitcases were in the possession of the respective defendants - they must prove that. The prosecution again must prove to the criminal standard of proof - proof beyond reasonable doubt - that dangerous drugs were in the suitcase. The prosecution must prove so that you are satisfied of it beyond reasonable doubt, that the defendants were aware that something was in the suitcase. If all that is proved to your satisfaction beyond reasonable doubt so that you are sure of it, then the presumptions, about which I addressed you earlier, come into operation.

Let me just read to you now what the law is."

31. It was at this stage that the judge then read section 47(1) and (2) of the Ordinance before continuing his directions on this aspect of the law at page 57F by saying:

"As I've said, members of the jury, it is a stage process before the presumptions come into play. As I said to you this morning, it's for the defendants to disprove the presumptions. They do not have to do that to the same high standard that the prosecution have to do. They have to do it to the standard of the balance of probabilities, about which I spoke to you this morning. It is for the defendants to satisfy you from all the evidence - and that is all the evidence that you have heard, not just their own evidence - that it is probable, which means more likely than not, that they were not aware that dangerous drugs were in the suitcases. I hope that helps you." (Emphasis supplied.)

32. Finally, the judge again read section 47 (1) and (2) to the jury and his concluding words were (at page 58C):

"As I have said, it is for the defendants to satisfy you from the evidence, and that is all the evidence you have heard, and not just their own evidence, that it is more probable, more likely than not, that they did not possess the heroin which was in the respective suitcases. And it is for them to prove, again to that lesser standard, that they did not know the nature of the drugs within the suitcases."

33. We have no hesitation in saying that these directions were full and fair and in complete accordance with the law. There is no substance in grounds 2 and 3 and they, like the first ground, must fail.

34. There is, furthermore, nothing to suggest that these verdicts were unsafe or unsatisfactory. These Defendants were caught red-handed on evidence that was utterly overwhelming. They were accorded a fair trial and their explanations, together with the legal implications which flowed from their evidence, were fully ventilated before the jury.

35. Accordingly, leave is refused and the applications in relation to conviction are dismissed.

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. and Mr. Albert Wong, S.G.C. for D.P.P./Respondent

Mr. Andrew Macrae instructed by D.L.A. for both Applicants (Re: conviction).