Jaykishin Vashdev Samtani v. The Queen

CACC000403/1979

Coram: Roberts, C.J., Li and Cons, JJ.

Date of Judgment: 1 November 1979

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JUDGMENT

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1. This is an appeal by Mr. Jaykishin Vashdev Samtani against his conviction in the Kowloon District Court on two charges of possession of a dangerous drug for the purpose of unlawful trafficking therein. He was also charged with one offence of trafficking (the first charge) and acquitted.

2. The second charge related to a quantity of 405. 7 grammes of mixture containing essence of cannabis; the third charge to 416. 2 grammes of the same dangerous drug.

Facts

3. The facts in the case are relatively simple. Two parcels, which were addressed to the appellant at Kowloon Post Office Box 4505, were posted from Bombay in India. They arrived at the Kowloon Post Office, one on the 21st November, 1978 and the other on the 2nd December, 1978.

4. The two parcels were opened and examined by a customs officer serving in the Post Office, Mr. LIU Wing-ho. Inside each parcel, he found a layer of Indian sweets and a concealed compartment containing a slab of black glutinous substance, which was later identified as essence of cannabis. Mr. LIU repacked the two parcels and kept them in a locker, subsequently handing them over to a senior customs officer, Mr. LEE Kwok-choi.

5. In the meantime, two "notice cards", one for each of these parcels, were sent by the Post Office to the appellant at Kowloon Post Office Box 4505, which was rented by the appellant. Thereafter, Mr. LEE Kwok-choi waited in the Post Office until the parcels were collected.

6. On the 6th December, the appellant arrived and presented to the counter-clerk a notice card marked "Bombay 1539". This was one of the two notice cards which had been put in the appellant's box at the Post Office. The counter clerk checked the identity card of the appellant against the notice card, noted down the appellant's identity card number and handed the parcel to him.

7. The appellant made for the exit of the Post Office. Before he reached it, he was stopped by Mr. LEE Kwok-choi, who told the appellant that he was a customs officer and wanted to examine the parcel. The parcel was opened and examined in the presence of the appellant. After the parcel had been opened, Mr. Lee asked the appellant if he knew what the substance was, to which the appellant replied that he did not.

8. Mr. Lee searched the appellant and found in a pocket of his jacket another notice card, marked "Bombay 1270", which number related to the other parcel in which essence of cannabis had been found.

9. The appellant was taken to the Customs and Excise Office, where the cannabis was removed from the concealed compartments of the parcels and put into two polythene bags, which were sealed. The substance was subsequently examined by the Government Chemist and found to contain the quantities of essence of cannabis which are described in the second and third charges.

Unsafe and Unsatisfactory

10. The main ground of appeal was that the conviction of the appellant was unsafe and unsatisfactory.

11. At his trial, the appellant gave evidence, to the effect that he went to collect the parcel in answer to the notice cards which he received and that he knew nothing about the contents of them.

12. It is necessary to distinguish between the two charges. The second was concerned with the parcel which was in the physical possession of the appellant, the third with the parcel for which he had a notice card but of which he did not have physical possession.

13. On the second charge, the trial judge had no difficulty in finding that the appellant was in possession of the parcel with the dangerous drugs contained in it. From this it followed that the presumption under section 47 of the Dangerous Drugs Ordinance was activated. So it was for the appellant, on the balance of probabilities, to satisfy the judge that he did not know that the parcel contained dangerous drugs.

14. The appellant gave evidence, and the judge had an opportunity to evaluate his testimony. The judge did not accept his explanation. This was essentially a matter of fact within his sphere and we can see no ground on which we could properly interfere with his conclusion that he did not accept the appellant's explanation.

15. We are, of course, aware that where a ground of appeal is that the verdict was unsafe and unsatisfactory, it is necessary for us, in accordance with the principles laid down in stafford ⁽¹⁾ to imagine ourselves to have been a jury, assessing afresh the evidence which was put before the court.

16. We do not feel, putting ourselves in that position, that we would have come to a different conclusion from that reached by the trial judge.

17. On the second charge, therefore, we refuse leave to appeal against conviction.

Agreement in Chambers

18. Before passing to the third charge, we think it desirable to refer to a somewhat unusual procedure which was followed at one stage during the trial. Counsel for the Crown and the solicitor appearing for the appellant agreed in Chambers, with the trial judge, on certain facts to the effect that the appellant, in the past, had provided useful information to the police about the drug activities of others.

19. These facts, in outline but not in any detail, were included in the record of the trial made by the judge, although they were not confirmed in open court.

20. This is a dangerous practice. No doubt there are exceptional cases in which it is proper for counsel to reach agreements during the course of a trial in a Judge's Chambers. But if such agreements are to be allowed to have any effect on the subsequent course of the trial, they must be confirmed in open court.

21. The sort of difficulty into which such a practice can lead is illustrated by the note which counsel for the Crown produced, of the Judge's reasons given verbally for sentence. In the course of those reasons the judge is reported to have said -

"I take into account matters brought to my attention in Chambers. These are not a complete excuse though I give some allowance for that."

22. It is essential that the principle should be preserved that a public trial remains a public trial and that parts of it should not take place in private.

Alternative reasons for verdict

23. We would like also to comment on the fact that we were faced with two versions of the judge's reasons for sentence, that version which was part of the official record and an alternative agreed between Counsel.

24. The alternative was submitted, very properly, by the appellant's solicitor to the judge for his approval, though perhaps that letter might have been phrased differently. It asked the judge's clerk to put the alternative record before the judge to see "whether he wished to make any observations on it." It would be better, in such a situation, for the solicitor to ask the judge whether he is prepared to approve the alternative version.

25. In this instance, however, we have been content to take the version agreed by counsel, since it was not challenged by the judge.

Notice Card not a document of title

26. We turn to the third charge. On this it was necessary for the Crown to establish, since the appellant was at no time in possession of the parcel itself, that the notice card issued by the Post Office to the appellant constituted a document of title, which would give rise to a presumption of possession under section 47 (2).

27. In a recent Privy Council appeal from Hong Kong, Kwan Ping-bong v. The Queen ⁽²⁾, Lord Diplock said -

"The burden lies upon the prosecution to prove that any document in the possession of the accused, which it relies upon as giving rise to the presumption that reverses the ordinary onus of proof in criminal cases, does fall within the described categories. Neither the air way bill nor the D. C. & I. Receipt is a document of a kind which is mentioned by name among those referred to in section 47 (2), nor was any evidence called at the trial as to the use made of either of these documents in the ordinary course of business, so as to bring them within the more general description of documents which appears at the end of the definition of 'document of title' in the Sale of Goods Ordinance. In their Lordships' view the prosecution failed to prove at the trial that either of the documents handed to Kwan Ping Bong by Jardine Airways' clerk at the airport fell within section 47 (2) of the Dangerous Drugs Ordinance."

28. The effect of this passage seems to us to be that if a document is not of a category specifically named in section 47 (2) or in section 2 of the Sale of Goods Ordinance (Cap.26) there must be evidence adduced by the Crown that the document is one which is used in the ordinary course of a business authorizing, or purporting to authorize, by endorsement or delivery, the possessor of the document to transfer or receive goods thereby represented.

29. The evidence of Mr. LEE Kau, the postal officer, was sufficient to establish that notice cards are issued by the Post Office in the ordinary course of business. Nor do we doubt that the Post Office is carrying on a business, within the definition of that word in section 2 of the Sale of Goods Ordinance.

30. But, we are not satisfied that a notice of this nature authorizes the possessor of the document to receive the goods which are contained in the parcel identified by the notice card. Such a card informs the addressee of the card that it is open to him to attend the Post Office and to establish his right to obtain possession of a parcel. It does not, of itself, confer on the possessor of the card any right to take such possession.

31. The decision to transfer possession of the parcel from the Post Office to the addressee is taken by the relevant post office official, after presentation to him of the notice card and of an identity card, if he is satisfied that the person named in the identity card is the addressee on the parcel and on the notice card, or that the person presenting the notice card has been authorized to collect the parcel by the addressee of the notice card.

32. Since, for these reasons, we do not think that a notice card amounts to a document of title, no presumption in relation to the third charge arose against the appellant. Without such a presumption there was insufficient evidence to support a conviction. It follows that we give leave to appeal against conviction on the third charge and quash that conviction.

Punishment

33. It remains to consider whether we should exercise our power under section 83B (2) of the Criminal Procedure Ordinance to substitute some other sentence for that of two and a half years passed on the appellant on the second charge, the conviction on the third charge having been quashed.

34. In the version of the reasons for sentence prepared by counsel, the judge took into account, when passing sentence, factors to which he should not have given any weight. He was influenced by his view that the appellant went to India to buy the drugs and had them sent to Hong Kong, as to which there was no evidence which was properly admissible against him. From this he reasoned that the appellant was, in effect, a trafficker in dangerous drugs, although the appellant was not convicted of the offence of trafficking, a more serious one than being in possession for the purpose of trafficking.

35. We have therefore considered whether the sentence of two and a half years should be reduced, but have decided that a sentence of two and a half years for unlawful possession of 405 grammes of essence of cannabis is not excessive. Consequently, we are not prepared to interfere with the sentence of two and a half years on the second charge.

Representation:

Corrigan (Hampton, Winter & Glynn) for Appellant

Martin for the Crown/Respondent

(1) (1974) A.C.878.

(2) (1979) 2 W.L.R. 433.