Wu Him Fong v. The Queen
Read the full judgment text of CACC 459/1968 on BabelCite. This Court of Appeal judgment was delivered on 4 December 1968.
1. The appellant was convicted on the verdict of the jury of unlawful possession of dangerous drugs, namely, 194 kilogrammes (427.7 1bs.) of raw opium and was sentenced to 7 years' imprisonment. He appeals against both conviction and sentence.
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CACC000459/1968 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 459 OF 1968 -----------------
Coram: Hogan C.J. and Mills-Owens J. Date of Judgment: 4 December 1968 ----------------- JUDGMENT ----------------- Mills-Owens J. (Delivering the judgment of the Court):- 1. The appellant was convicted on the verdict of the jury of unlawful possession of dangerous drugs, namely, 194 kilogrammes (427.7 1bs.) of raw opium and was sentenced to 7 years' imprisonment. He appeals against both conviction and sentence. 2. It is common ground that the appellant habitually drove a motor-car and that on the night of the 13th May 1968 he drove to the Shaukiwan area and, at about 10.50 p.m., turned into a side road leading to a comparatively deserted area where, however, there are a number of wooden huts. At this time, according to the prosecution, he was under observation by police officers who did not follow the car into the side road but awaited the appellant's return to the main road. Also, according to the prosecution, the rear lights of the ...(illegible) put out when it was driven into the side road. After some 15 minutes the appellant emerged from the side road driving the car, and then drove to a point in Gloucester Road where he parked the car at the side of the pavement in a metered car-parking space; this is not disputed. There, according to the prosecution, the appellant was approached by a Chinese male person with whom he had some conversation, on the pavement following which this person left the appellant. Then the appellant, it is common ground, remained at the scene, in Gloucester Road, for about one hour, part of the time seated in the car and part of the time walking about, until finally at about 12 midnight he locked the doors of the car and the boot and departed, leaving the car where it was parked. It is undisputed that the appellant never went near the car again, remaining at home until arrested seven days later. In the meantime the car had been towed away by the police who forced open the boot and discovered the drugs therein, wrapped in polythene packets contained in five sacks effectively concealing the nature of the contents. 3. The evidence for the prosecution was that throughout the journey to and from the side road the appellant had no passenger. The appellant said in evidence that he was a "pak-pai" driver and that, on the occasion in question, at about 9.30 p.m. he picked up the Chinese male person who the prosecution say approached him at Gloucester Road, as a passenger at the North Point pier in accordance with an arrangement made between them the previous day: that on his passenger's instructions he then drove to and into the side road and was told by his passenger to stop at a point where another man was standing outside a hut, and to turn the car around, which he did. On his passenger's instructions, the appellant said, he opened the boot, and the passenger and the other man loaded five sacks into the boot. The appellant himself, as he said, moved the spare tyre from the boot onto the rear seat of the car in order to make room in the boot for the sacks. Then, according to the appellant, his passenger re-entered the car and instructed him to drive to Gloucester Road, there directing him to park; the passenger then alighted, telling the appellant to wait for him and walked away; he never returned to the car. The appellant, according to his evidence, remained seated in the car for some 10 or 15 minutes, then left the car to get a drink, first locking the car doors and the boot; he then walked to and fro, waiting as he said for his passenger; and finally, feeling unwell, he left for his home, a hut at Sek Pai Wan, leaving the car where it was: he had been at the scene for about 1 hour. He remained at his home at Sek Pai Wan, he said, until the 18th, being ill in bed all the time; on the 18th he and his family moved to a hut at Ap Li Chau where on the 20th he was arrested. The reason for the move to Ap Li Chau, he said, was that the hut at Sek Pai Wan was unsafe due to typhoons of the previous year. But he agreed that after his arrest his family moved back to the hut at Sek Pai Wan. He made no effort to contact his passenger, he said, because of his illness and because he did not know his passenger's address. 4. Two statements made by the appellant were ruled admissible and put before the jury. They were (1) Exhibit L, being a statement made at the time of his arrest, in the following terms:-
and (2) Exhibit K, being his statement on being charged the next day, made in these terms:-
5. Ground 1 of the grounds of appeal, concerning the admissibility of the statement Exhibit L, was abandoned on the hearing of the appeal. 6. Grounds 2, 6 and 8 complained of the use by the trial judge of the word "confession" in relation to the statements Exhibits K and L. In our view the statement Exhibit L was not inappropriately described as a "confession" if the jury were to conclude that it related to the occasion in question. The learned trial judge made it clear to the jury that it was entirely a matter for them to determine whether the appellant "was referring by 'once' to the events which had just been mentioned to him in the caution or whether he was referring to something entirely different". We would agree that the other statement, Exhibit K, was not a confession in that while admitting his relationship with the goods the appellant was denying knowledge of their nature, but the point made appears to us to have little substance in view of the contents of the other statement. 7. Ground 3 complained of the reference made by prosecuting counsel in his closing address to the appellant's evidence given on the voire dire proceedings concerning the admissibility of the statements. Counsel for the appellant referred hereon to Cross on Evidence(1). It became apparent, however, that the evidence in question had been repeated before the jury; counsel for the appellant, therefore and quite properly, did not pursue this ground of appeal, and we need not enter upon the question whether statements made by an accused on the voire dire may or should be allowed to be cross-examined to or proved against him at the trial. 8. Ground 4 alleged misdirection on the burden of proof. Counsel for the appellant referred to the following passage in paragraph 1001 of Archbold, 36th Edition:-
The learned trial judge had told the jury that "the burden of proof is, in the first instance, upon the prosecution .......... the prosecution have to prove the guilt of the accused beyond all reasonable doubt ......... You must have all your doubts dispelled before you find him guilty". He then went on to say:-
9. Then, having reviewed the evidence as to the circumstances giving rise to the statutory presumption, the learned judge said:-
Finally, he told the jury that the burden resting on the appellant by virtue of the presumption was the lighter onus of proof on the balance of probabilities (in accordance with the case of R. v. Carr-Briant(2)). 10. The argument for the appellant, as we understand it, is that in referring to the need for proof beyond reasonable doubt the judge limited his remarks to the stage at which the case stood when the statutory presumption might be considered to arise; that he failed to direct the jury that they must apply the principles relating to the burden and the standard of proof, namely, proof by the prosecution and beyond reasonable doubt, to the case as a whole - meaning the evidence for the defence as well as for the prosecution, albeit taking account of the statutory presumption if they concluded that the facts as they found them gave rise to it. 11. In our view, there is no room for criticism of the summing-up in this respect. A direction in the terms suggested would, in this case, have been confusing and have gone far to negative the statutory presumption. This is not to say that cases may not arise where the circumstances are such that the presumption will have little, if any, probative effect. The presumption raised is an evidential one, not one of law, and the circumstances of a particular case could well amount, of themselves, to disproof of the presumed fact of possession, or the presumed fact of knowledge - possibly, for example, in the case of a common carrier. 12. Ground 5 of the grounds of appeal is dealt with below. The substance of ground 6 has been dealt with above. 13. Ground 7 was to the effect that the learned judge was wrong in mentioning "conspiracy" when the appellant was not charged with any offence of conspiracy. This relates to the passage in the summing-up where, in referring to the observation kept by the police on the appellant's movements on days preceding the day of the alleged offence, the judge said:-
There is, in our view, nothing to which exception can properly be taken in this passage. It put the case for the Crown as it was presented, and in accordance with the evidence for the prosecution. It was not inappropriate, in the circumstances, to refer to that evidence as seeking to set up "something in the nature of a conspiracy". 14. Ground 8 has been dealt with above. 15. Ground 9 was a general ground of prejudice or substantial miscarriage of justice, in respect of which counsel said he relied most strongly on grounds 4 and 8. 16. This leaves ground 5 which reads:-
Here it is relevant to observe that the appellant himself in the course of his evidence said that he locked the doors of the car and the boot containing the sacks before departing and leaving the car in Gloucester Road. Clearly, in our view, the statutory presumption arose. The question then would be whether the other circumstances, whether resting on the evidence of the appellant or otherwise proved, displaced the presumption, on the balance of probabilities. If the jury disbelieved the appellant's version that he was accompanied by a passenger whose goods the sacks and their contents were, then there was material upon which they could convict. This would be so, in our view, quite apart from the statutory presumption; a prima facie case must, ordinarily, arise against an unaccompanied driver of a vehicle in which dangerous drugs are being carried. We would refer generally to the case of Warner v. Metropolitan Police Commissioner(3). 17. In the present case it was a question for the jury whether the appellant was accompanied by a passenger. Here we would say that the driver of a car or other vehicle which is being used to transport goods in the unlawful possession of another, who is present, can fairly be said to be prima facie aiding and abetting the unlawful possession of the other, if the driver has the necessary mens rea. We would refer to the case of R. v. MoCarthy(4). Whether he has the necessary mens rea can only be deduced from his statements and actions. In the present case, the latter were so suspicious that a jury would have been amply justified in making such a deduction. Assuming for the moment that the jury believed the evidence of the appellant, or considered it a not unreasonable possibility that he was accompanied by a passenger who was making use of the appellant's services as a "pak-pai" driver, was that evidence such that a presumption arose under the terms of the Ordinance which fixed the appellant with guilt unless he succeeded in displacing it? It is contended that up to the moment when the passenger was in the car with him, the appellant had neither possession, custody nor control of the drugs and that that position did not change when the passenger left the vehicle and the appellant remained in sole physical control of the vehicle and its contents. It may be that the passenger's "possession", in the sense in which "possession" is used in the common law in civil proceedings, continued even though he was absent but the question is whether the custody of the drugs was, from that time onwards, in the appellant who had physical control of them and locked them in the boot; did the appellant have physical custody and control of the drugs even though in his own mind he may have been holding them in safe custody for the passenger? Two sections of the Ordinance are particularly relevant: section 10 and section 16. Section 10 speaks of "possession" and of "possession on behalf of another". In effect, this means that the word "possession" in this section has an extended meaning wide enough to sweep into its orbit relationships which would normally be described as mere custody or control. The Chan Sun case(5) shows that this construction is necessary in order to harmonize section 16 with section 10 because otherwise the mere custody or control of a receptacle containing drugs would attract a liability when custody or control of the drugs themselves would not. We have considered whether this approach ignores the presence of the words "until the contrary is proved" in section 16; whether it can be said that when a man has custody or control of the receptacle and consequently is presumed to have possession of its contents, he discharges the onus raised by the presumption if he prove that someone else has, in law, possession of the latter to his exclusion. In our view a rational construction of the two sections requires that the word "possession" in section 16 be understood in the extended sense given to it by section 10 so that the presumption of possession flowing from custody or control of the receptacle is not displaced merely by snowing that the custodian was in possession on behalf of somebody else or, in other words, that whilst he had physical control of the article, legal possession of it rested in another. In the circumstances of the present case the passenger would not have gained physical control over the drugs unless the appellant returned and opened the boot or transferred the key to him. In our view, therefore, the presumption properly arose against the appellant even assuming that the jury accepted his version in its entirety. We have felt some anxiety as to whether the reference in the summing-up to "joint possession" should more appropriately have been directed towards a possible aiding and abetting by the appellant of the passenger's possession. Although both the passenger and the appellant may have had possession of the drugs at the same time that possession might not have been joint in the ordinary sense but, insofar as the appellant was concerned, may have been no more than that possession on behalf of another to which reference is made in section 10 of the Ordinance. However, in the circumstances of this case, the point is no more than academic and would not call for intervention by this court. 18. The application for leave to appeal against conviction is refused. Representation: (1) 2nd Ed. at p.55; 3rd Ed. at p.57. (2) (1943) 29 Cr. App. R. 76. (3) (1968) 2 All E.R. 356. (4) (1964) 48 Cr. App. R. 111. (5) (1956) H.K.L.R. 55. |