HKSAR v. Chiu Wing Nam Dick

CACC000423/2003

CACC 423/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 423 OF 2003

(ON APPEAL FROM HCCC 113 OF 2003)

____________________

____________________

Coram: Hon Stuart-Moore VP, Yeung JA and Hartmann J

Date of Hearing: 7 May 2004

Date of Judgment: 7 May 2004

____________________

J U D G M E N T

____________________

Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 23 September 2003, following a trial before Gall J, the applicant was convicted and sentenced to twelve years and six months' imprisonment for an offence of trafficking in a mixture weighing 705.90 grammes containing 295.42 grammes of heroin hydrochloride. He now seeks leave to appeal against conviction.

The facts

2.The facts of the case were largely admitted, pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221. On 18 December 2002, the applicant was found in physical possession of the heroin particularised in the indictment. Approximately half of the amount was in the applicant's shoulder bag and the other half was concealed in his underpants. The only real issue at trial concerned the applicant's knowledge of the nature of what he was carrying. Coupled with this, the evidence concerning the applicant's behaviour prior to his arrest, as well as what was said and done at the time his bag was searched and later when the applicant himself was subjected to a body search, were also to some extent the subject of challenge.

3.The applicant gave evidence that he was unaware he was carrying drugs. He said he had been asked by a friend called "Ah Po" in Shenzhen to bring fake mobile telephone batteries into Hong Kong in return for a reward. He also spoke of having forgotten to take with him to the Mainland the medication he was supposed to take for schizophrenia and, when he awoke on 18 December 2002, he found himself confused and hearing laughter. He met "Ah Po" who told him to put the wrapped items, which he believed were batteries, inside his underpants to avoid detection. Voices told him to believe "Ah Po". Trusting him, the applicant said that he did not unwrap the items and, in any event, "Ah Po" had told him that they would be difficult to wrap up again.

4.It was accepted at trial by witnesses for the prosecution and the defence that the applicant suffered from schizophrenia. The two medical experts who testified at court also agreed that a failure to take the medication prescribed would be "unlikely" to bring on hallucinations. The applicant was able, it was said, to live a relatively normal life as long as he did not have relapses. In a written report from Doctor Elizabeth Wong, it was stated that the applicant was able to sustain jobs as a salesperson and delivery worker and that there had been "no resurgence of psychotic symptoms". These symptoms, the jury were told, would be hallucinations and delusions.

5.The defence also called a witness at trial, Lau Tung-kit, to speak about the conversation he alleged he had overheard between "Ah Po" and the applicant in which the applicant was asked to take batteries to Hong Kong.

The application

6.Against this background, Mr Mughal for the applicant advanced three grounds of appeal which were closely linked. In effect, he alleged that the judge had misdirected the jury by "unduly emphasising the evidential burden" on the applicant under section 47 of the Dangerous Drugs Ordinance, Cap. 134 ("the Ordinance"), which may, he submitted, have led to confusion about the burden and standard of proof required to rebut the statutory presumptions.

7.Section 47 of the Ordinance provides as follows:

"(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,

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."

8.The directions which are relevant to this application began when the judge directed the jury about the definition of trafficking, making it plain to them that:

".... To traffic you not only have to import, in this case, or supply or deal, you must also know that you are dealing with a dangerous drug, know that you are importing, know that you are moving. If you do not know that what you bring in or deal in are drugs, then you are not guilty because you must know that what you have is a drug and a dangerous drug.....

So going back, there is no doubt that it was the accused on that day, in that place, in Hong Kong, who imported, carried, dealt in a dangerous drug. From all you have heard in the Agreed Facts, from all you have heard in evidence, those facts are not in dispute. The question is, and the one question for you, is this: did he know that he was trafficking in a dangerous drug? If you are not sure that he knew, you are uncertain, then you will acquit. It is only if you are sure that you will convict.

This is where it gets a little bit more complicated. Many years ago, in relation to the trafficking in drugs, Parliament, the Legislative Council, passed a law and it says this:

'Any person who is proved to have in his physical possession anything containing a dangerous drug shall, until the contrary is proved, be presumed to have had such drug in his possession.'" (Appeal bundle p. 7)

9.This direction was then repeated, before the judge went on to say:

"So what does that mean? 'Any person who is proved to have had in his physical possession anything containing a dangerous drug.' I think you will have little difficulty here in deciding that the accused is proved to have had in his physical possession, either in his bag or in his underpants, dangerous drugs - or packets containing dangerous drugs. So until, on the evidence, it is shown to the contrary, he is presumed to have had that drug in his possession. So the fact that it is in his bag does not matter; he is presumed to have all those drugs in his possession.

If he is proved or presumed to have those drugs in his possession, until the contrary is proved, he is presumed to know what they are, to know they are drugs. Therefore, given the evidence which is not in dispute, and given this presumption, unless it is proved to the contrary, the accused had possession and knew what he had.

So you have to look at the evidence both in the case for the prosecution and in all that has come from the defence and decide whether it is more likely than not that he was unaware of the nature of the drugs. If you find it is more likely than not that he believed they were batteries, that he did not know they were drugs, then you could not be sure he knew that they were drugs and you would acquit. If, on the other hand, having considered all of the evidence, you think it is more likely than not that he knew they were drugs, then the presumption would make you sure of his knowledge that they were drugs and you would convict." (Appeal bundle p. 8)

We should add here that these last two sentences, as Mr Mughal pointed out, were repeated shortly afterwards in the summing up. The judge then continued:

"This is not the accused proving his innocence. This is looking at all the evidence and determining whether a fact which the law says you presume exists is more than likely not right. If it is more than likely not right that he knew that he had drugs, then you cannot be sure he knew and then you will acquit." (Appeal bundle p. 8)

Immediately after these directions, the judge went on to deal with the further complication which might arise in the mind of the jury relating to the applicant's mental condition. He said:

".... The prosecution has to prove guilt beyond reasonable doubt so you are sure, but it only has to be shown that he did not know what he was carrying on the balance of probabilities, more likely than not. So that is a far lower burden of proof than the prosecution has to prove.

When you consider that, you must consider the evidence given by the doctors. The question is, you see, not what you would have done or what you would have believed in these circumstances, if you had been in the position of the accused, but what he did and thought. What he did or thought is, of course, affected by whatever the condition of his mind was. So if, after considering the evidence of the doctors, you are of the view, as Dr Chan said, that he had a mild defect in judgment - and I will come back to the doctors' evidence - then you would take that into consideration in deciding whether or not it is more probable than not that the accused was unaware that they were dangerous drugs.

You should consider all the evidence as well because it is not just on the mental condition of the accused alone that you decide it. You look at all the evidence that you have heard, including evidence from the accused and Mr Lau, at all the circumstances of the transaction, and look at both that and the mental condition and decide whether or not it is more likely that he did not know what he was carrying.

If you come to the view of Dr Yuen, that the accused had no mental disability at all, he was for those purposes, on that date, on the 18th - because that is the only date we are interested in; what we are interested in now is only his mental condition on that date - if you decide that Dr Yuen is the opinion that you find credible, then that does not mean that you forget the evidence. You just disregard the mental element as to mental illness and look at the evidence itself because, on that, you may be satisfied that it is more probable than not that the accused was unaware of what he was carrying." (Appeal bundle pp. 9-10)

10.On the day those directions were given, the summing up could not be concluded. So, the judge adjourned the hearing after the stage where he had dealt with the evidence including the defence case. On the following morning, the judge continued by saying:

"Members of the jury, I summed up the case on the law to you yesterday. I will just remind you that it is for the prosecution to prove the guilt of the accused, and the standard which the prosecution must reach if it is to be successful is so that you are sure of the guilt of the accused.

As I said to you yesterday, there is no dispute about much of the evidence and the prosecution have, on their behalf, a presumption that says that since the accused had the packets of drugs in his possession, he is presumed to know that they were drugs. It is for you to look at the evidence, both from the prosecution and defence, and see whether it is more likely than not that he was unaware that he knew what he had was drugs. That is the principal issue which you have to decide, and that is, on the balance of probabilities, is it more likely than not that he was unaware, he did not know, that what he had was drugs." (Appeal bundle p. 16)

11.Mr Mughal contended that it was at least arguable that it was unnecessary in the circumstances of the case to deal with the presumptions (of possession and knowledge) under section 47 of the Ordinance at all on the basis that it may have confused the jury as to what the prosecution had to prove. In saying this Mr Mughal relied upon what was said by P. Chan J (as he then was) in R v Ng Chiu-leung [1996] 1 HKC 181 at 188 which was in these terms:

".... In the circumstances of this case, as in many other similar cases, we wonder whether it was even helpful to refer to these presumptions. We would respectfully echo the remark of Macdougall, VP, in R v Tam Chun Fai, (Crim App 663/93, unreported) at p 6 that 'early consideration should be given to the repeal' of the presumptions in s 47 which are little more than inviting the jury to apply their common sense to the facts of the case.

However, once these statutory presumptions are invoked, a trial judge should give further directions as to the meaning of these presumptions and their consequences including the burden on the defendant and the standard of proof capable of rebutting such presumptions. It would be dangerous to omit these further directions unless it can be said that the jury are at the end of the day left with no doubt what the prosecution have to prove and that the burden always rests with the prosecution to prove them beyond reasonable doubt.

The trial judge, having referred to s 47 in a piecemeal way, did not refer to or rely on these presumptions any more. He did, however, remind the jury that the prosecution must prove to the requisite standard possession in the sense that the defendants 'had either custody or control of it and they were aware of the nature of the substance they carried' and that they had been trafficking in it.

Taking his summing-up on this aspect as a whole, despite the unnecessary reference to s 47(2), we are of the view that the jury could not have been confused as to what the prosecution had to prove and up to what standard....."

12.We entirely agree that the presumptions effectively amount to an invitation to the jury to apply common sense to the evidence before them and, in many cases, judges would doubtless be well advised to attempt to persuade the prosecution at the outset of the trial not to rely on the presumptions which, more often than not, have a tendency to confuse with legal jargon an otherwise completely straightforward issue of fact. This being said, as P. Chan J said, once they are invoked, they should be explained together with their effect on the burden and standard of proof.

13.In the present case, it seems to us, that the judge, albeit in circumstances where the prosecution did not need to rely on the presumptions, set out the law and its consequences with clarity.

Conclusion

14.Accordingly, we are satisfied that there are no grounds for interfering with the jury's verdict and the application is dismissed.

Representation:

Mr P.K. Madigan, SGC, of the Department of Justice, for the Respondent.

Mr Hanif Mohammed Mughal, instructed by Director of Legal Aid, for the Applicant.