The Queen v. Wong Ki Cheong

CACC000043/1988

IN THE COURT OF APPEAL

BETWEEN

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Coram: Fuad, V.-P., Hunter, J.A. & Macdougall, J.

Date of Hearing: 29th June 1988

Date of Judgment: 29th June 1988

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J U D G M E N T

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

1. The Applicant, Wong Ki Cheong, appeared before the High Court ( O'Dea, J. and a jury) on an indictment containing six counts. He pleaded not guilty to them all. He was acquitted on 14th January 1980 on Counts 1 - 5 by majority verdicts of 5:2 in each case, in those Counts he had been charged with manufacturing dangerous drugs. On the same day the Applicant was convicted by a majority verdict of 6:1 on Count 6 of possessing dangerous drugs for the purpose of unlawful trafficking and sentenced to 14 years' imprisonment. From that conviction he now seeks leave to appeal to this Court. He has today abandoned his application for leave to appeal against his sentence.

2. Certain facts were admitted under s.65C of the Criminal Procedure Ordinance. Among these were the following:

(a)     the Applicant was the registered tenant of Flat H on the 17th Floor of Cheung Fai Building, 41-51 Cheung Wah Street, Cheung Sha Wan, Kowloon ("the Flat");

(b)     on 23rd July 1987 71 packets of what proved to be drugs were found by the police in the Flat. The packets added up to 15.053 kilos of a mixture containing 1.345 kilos of salts of esters of morphine: 8.9% No.3 heroin;

(c)     one of the Applicant's palm prints was found on a can of air freshener in the kitchen cupboard of the Flat, and another on a piece of cardboard contaminated with traces of dangerous drugs;

(d)     the tenancy agreement of the Flat and a rent receipt were found under a bed in the Flat. They bore the Applicant's name and I/D card number;

(e)     after enquiries, the police traced the Applicant to his parent's home in Cheung Wo Court; Kowloon. He and his girlfriend were arrested there. In the Applicant's trouser pocket was found a bunch of nine keys. Four of these keys had to do with the flat in which the drugs had been found -

(i) one opened the main gate to the building on the ground floor;

(ii)     one opened the Flat's letter box on the ground floor,

(iii)     one opened the front wooden door of the Flat, and

(iv)     one opened the padlock of the iron grille which protected the front door of the Flat.

3. The prosecution case relating to Counts 1 to 5 (manufacturing dangerous drugs) was mainly founded on cautioned statements allegedly made by the Applicant. From their verdicts on those Counts it is apparent that the jury were not happy about the circumstances in which the statements had been taken for the judge had told them that the case on Counts 1 to 5: "depend[ed] very much on the stance you take with regard to the cautioned statements themselves".

4. As to Count G, the Applicant told the jury that he had a triad protector called Ah Shing. Ah Shing had asked him to look for premises. He had seen an advertisement which looked promising. He followed it up and after paging Ah Shing they went to look at the flat in Cheong Fai Building together. Ah Shing said he had forgotten his I/D card and asked the Applicant to have the tenancy registered in his name. Sometime later he, the Applicant, went to the estate agent's office and signed the agreement, accompanied by Ah Shing's girlfriend, since Ah Shing was "not free" to attend himself.

5. The Applicant went on to testify that his only subsequent involvement with the Flat was that he had used it on about 10 occasions when he had gone there to spend the night with his girlfriend; the last such occasion being a few days before his arrest. He denied knowing anything about the drugs found in the Flat.

6. The sole ground of appeal raised on behalf of the Applicant is that the conviction is unsafe and unsatisfactory because the judge had misdirected the jury throughout that the central issue was whether the defendant could satisfy them on a balance of probabilities that he was unaware of the presence of the drugs in the Flat, when the judge ought to have directed them that knowledge was not the equivalent of possession and that even if the defendant knew of the existence of the drugs in the Flat, he would not be guilty of the offence unless the jury also found proved the other essential ingredient of possession, namely the intention to exercise control over the drugs.

7. The judge told the jury the effect of s.47(1) of the Dangerous Drugs Ordinance: that any person who is proved to have had in his possession, custody or control the keys of any premises in which a dangerous drug is found shall, until the contrary is proved, be presumed to have had the drug in his possession.

8. The judge pointed out to the jury that the Applicant had admitted that the keys to the Flat were found on his person and in-the Flat a large quantity of dangerous drugs had been found. Therefore, the judge correctly directed the jury that the presumption had been raised and the defendant was presumed to have had the drugs in his possession until the contrary was proved. The judge then went on to direct the jury as follows:

" How can the contrary be proved, or how can the presumption be rebutted? All the defendant has to show is that on all the evidence it is more likely than not that his account of complete ignorance of the presence of drugs in the premises. All he has to show is that it is more likely than not that is [a] truthful explanation and he would have successfully rebutted the presumption of possession.

You will recall that when I was giving you directions earlier on the onus and standard of proof that apply with regard to the Crown spoke of them having to prove their case to a high standard so that you feel sure. In rebutting the presumption the defendant is not required to satisfy you to such a high standard. He merely has to establish his case on a balance of probabilities, and that simply means that he has to show that it is more likely than not that his version or his innocence is or - sorry, his lack of knowledge of these drugs is more likely than not that he did have this lack of knowledge and he has rebutted the presumption. I am sure you will appreciate the distinction between the two standards of proof that apply in this case.

Well, gentlemen, has he satisfied you it's more likely than not that he was completely unaware of the existence of these drugs in this flat? Well, he has given evidence about this and so has his girlfriend. They have given evidence of the circumstances surrounding his possession of the keys to the premises and, of course, of his knowledge, or rather his lack of knowledge as to the activities which were taking place in that particular flat.''

9. The judge then carefully reviewed the evidence and very fairly and fully dealt with the defence raised. He returned to the rebuttal of the statutory presumption towards the conclusion of his summing up in these words:

I'll perhaps simply close on this aspect of my summing-up by saying that you are the final judges of all questions, in fact, and in deciding whether or not the presumption that the defendant was in possession of the drugs has been rebutted you only have to find that it is more likely than not that his version as to his lack, of knowledge, the role he played is true. If you so find then he must be acquitted of the Sixth Count because he has rebutted the presumption. If you are not so satisfied then the presumption remains, the presumption applies and you have to find him guilty."

10. The proposition upon which the sole ground of appeal is based is misconceived for it ignores the impact of the presumption created by s.47(1) of the Ordinance. The onus is placed on the defendant and therefore the only issue for the jury is that which he raises by way of rebuttal.

11. For this reason we are unable to accept the submission that in the light of the defence of lack of knowledge raised by the Applicant it was incumbent upon the judge to direct the jury on any other basis for rebuttal if they were satisfied that he knew the drugs were in the Flat. Moreover such a direction was calculated to detract from the defence actually raised and to confuse the jury.

12. In our judgment, the judge gave clear, correct and helpful directions to the jury on the evidence, the effect of the statutory presumption and how the presumption could be rebutted. The whole summing up was an impeccable discharge of his duty as a judge.

13. The application for leave to appeal against conviction is, therefore, refused.

Representation:

Mr. Simon Westbrook (C.W. Leung & Co.) for Applicant.

Mr. A.A. Bruce (Crown Prosecutor) for Crown.