The Queen v. Pow Po Wo

CACC000447/1990

HEADNOTE

Direction as to onus of proof. The Court held that the judge would not have been wrong when directing jury as to the onus of defendant to displace the presumption of possession arising under section 47 of the Dangerous Drugs Ordinance. If he had directed the jury without explanation, then the defendant was required to establish the contrary "on a balance of probabilities". The judge, however, having gone on to describe "the issue in the case", told the jury that if they believed the defendant did not know the drugs were there, they should return a verdict of not guilty and if they did not believe her, they should return a verdict of guilty. The Court was satisfied that the jury might nave been left with the impression that the issue was a straight contest between the evidence of tile applicant and the evidence of tile Crown and ordered that the conviction should be quashed.

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Coram: Hon Yang, C.J., Silke, V.-P. and Power, J.A

Date of Hearing: 29 January 1991

Date of Delivery of Judgment: 27 February 1991

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced a charge that she on the 11th day of December, 1988 at the Arrival Hall, Lo Wu Terminal, Lo Wu, New Territories, had in her possession a dangerous drug, namely 962.80 grammes of a mixture containing 854.64 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. She pleaded not guilty to that charge and was, after trial before Barnes J. and a jury in the High Court, found guilty and sentenced to imprisonment for eight years.  She now seeks leave to appeal against both conviction and sentence.

3. The evidence at trial revealed that on the 11th of December 1988, the applicant was passing through the Customs Control Point at Lo Wu in the course of a railway journey from China. She was carrying a plastic bag in which there was a Martell brandy box. She was told at the Customs Control Point that she would have to pay duty on the brandy. As she was preparing to pay, a customs Officer opened the box to inspect the contents and found three packages of substance which, upon analysis, was found to be the drugs the subject of the charge. The applicant was cautioned after the discovery and in reply said that the box was purchased at a guest house in Canton and that she did not know what it contained.

4. The applicant gave evidence that she had received a telephone call from her brother-in-law saying that he had arrived in Guangzhou and he wanted her to bring her two sons there for a pleasure trip. She said that she left her sons at the railway station in Guangzhou because one was feeling unwell and went to a restaurant where she met her brother-in-law and his son-in-law. She said that the son-in-law asked her to bring a bottle of wine from Guangzhou to Hong Kong and that she said she could purchase one in the Duty Free Shop but that he said that he had already purchased one and that he would give her money to pay the customs duty. She said that she was told to keep the bottle of wine at home and that the son-in-law's friend would contact her regarding its collection and that she had no suspicions about the box. She admitted that she had not told the Customs Officer the truth when she said that she had bought the box in the duty free shop and that she had done so because she was taken by surprise. She said that she had been on the point of telling the Customs Officer the truth but had not done so because he kept scolding her.

5. The only issue in the trial was whether she had displaced the presumption of possession of the dangerous drugs which, given her possession of the box, arose against her by virtue of s.47 of the Dangerous Drugs Ordinance.

6. In her Grounds of Appeal against conviction, she raises a number of matters of fact. These were fully canvassed at the trial and were essentially matters for the decision of the jury. Given that the jury was properly directed as to the law, none of these matters could properly be raised to call into question the correctness of the finding of guilt.

7. Mr. Saw, who appears for the Crown, has raised for our consideration a passage in the summing-up which dealt with the onus which lay upon the applicant when displacing the presumption. The trial judge said:

"What our law says is this. Once it is proved beyond a reasonable doubt that a person has physical control of anything, such as in this case, that Martell brandy box which contained heroin, then the person who had that Martell brandy box is presumed to be in possession of that heroin until the contrary is proved on the balance of probabilities.

The conclusive evidence before you is that the defendant had that box, and that it contained heroin. By law, therefore, she was in possession of that heroin, unless there is evidence before you which proves, on the balance of probabilities, that she was not in possession of it.

Now the evidence that is relied upon as showing that she was not in possession of the heroin is the evidence that the heroin was in that Martell box without her being aware that it was there, and that is the big question in this case. If you believe that she was unaware that the heroin was in the box, she is not guilty. If you do not believe that she was unaware, she is guilty.

The issue in this case, members of the jury, can be stated as succinctly as that. If you say to yourself, 'I believe she didn't know it was there - not guilty.' If you say to yourself, 'I do not believe that she didn't know it was there - guilty.'''

8. The recent decision of the Court of Appeal, delivered by Macdougall J.A., in The Queen v. LEE Wai-keung, Dickie and CHU Ngan-ying Crim.App. No.317 of 1989, is directly in point. The court was there concerned with a submission that the direction of the trial judge was inadequate as he had failed to direct the jury both as to the meaning of the expression "on the balance of probabilities", and that the burden of proof upon the applicant was significantly less onerous than that which lay on the prosecution. The court, after considering The Queen v. LAW Chi-keung and Others (unreported) Crim. App. 90 and 290 of 1983, and The Queen v. LAM Wing-kwong (unreported) Crim. App. 104 of 1984, and R. v. Swaysland, reported in The Times of April 15th 1987, held:

"We accept Mr. Cross's submission that although the Privy Council in CHAN Ho-kuen stated that all it was necessary in this regard was for the judge to tell the jury that whereas the prosecution had to prove their case beyond reasonable doubt, the accused only had to prove that their explanation as to how they came into possession of the drugs was more likely to be true than not'. It is apparent from their endorsement of the passage from Carr Briant that their Lordships were by no means prescribing a sacrosanct formula from which departure was impermissible. Less still were they disapproving of the use of the expression 'on the balance of probabilities'. It seems to us, however, that use of the expression 'more likely to be true than not' has the advantage of simplicity. No doubt it was that consideration that led the Privy Council to use that form of words. Indeed, it is our experience that it has long been the practice of judges in Hong Kong to use that formula when directing juries of the standard of proof required in discharging a presumption. We strongly encourage that practice.

It hardly needs stating that where a judge takes it upon himself to explain the meaning of proof on the balance of probabilities he must do so clearly and accurately. In our view the real issue in this appeal is whether the judge achieved that result."

This final paragraph addresses the issue in the present appeal. The judge twice reminded the jury that the onus on the applicant was to prove the contrary "on the balance of probabilities". We would not be prepared to say that the judge was wrong had the matter been left without explanation as to the meaning of "the balance of probabilities". We stress, however, that we are in respectful agreement with the indication given by the Court in LEE Wai-keung's case that the use of the formula "more likely to be true than not" is a practice to be strongly encouraged.

9. In the present case, the matter did not end with the use of the term "on the balance of probabilities". The trial judge went on when describing the "issue in the case" tell the jury that:

"If you say to yourself, 'I believe she didn't know it was there - not guilty.' If you say to yourself, 'I do not believe that she didn't know it was there - guilty."

It is true that, given the context, the jury might have read the appropriate onus into the above passage. The jury might also, however, in our view, have been left, in the outcome, with the impression that the issue was a straight contest between the evidence of the applicant and the evidence of the Crown. That being so, the conviction is unsafe and unsatisfactory and the appeal must be allowed. The appropriate direction to be given to a jury in circumstances such as this, we are satisfied, can be simply stated. The jury should be told that (i) the presumption of possession includes a presumption that the defendant knew that the contents of the container were dangerous drugs; (ii) the presumption can be displaced if there is evidence coming from any source which satisfies them that it is more likely than not that the defendant did not have such knowledge; (iii) the onus on the defendant is a lesser one than the onus of proof beyond reasonable doubt which is placed on the Crown.

10. The application is allowed. The hearing of the application will be treated as the hearing of appeal. The appeal will be allowed and the conviction quashed.

11. Mr. Saw who appears for the Crown has submitted that the public interest and the weight of evidence call for an order to be made for a new trial. The applicant has addressed us saying that she has already been tried twice upon this charge, that she would find the strain of a third trial intolerable and that it would be unfair to make any such order. She has suggested to us that we take the course of imposing a reduced sentence upon her. This is not a course open to us. As matters stand we can only either order a new trial or refuse so to do. The amount of dangerous drugs involved was substantial and the Crown case was strong. Bearing in mind all that she has said, we are nonetheless satisfied that the appropriate and proper course is to order that she be tried again. We therefore order that she be tried on a fresh indictment on the same count.

Representation:

Mr. D.G. Saw (Crown Prosecutor) for the Respondent.

Applicant  in person.