The Queen v. Choi Yiu Kwai and Another
Read the full judgment text of CACC 465/1983 on BabelCite. This Court of Appeal judgment.
1. The appellants, who were the first and second defendants ("D.1" and "D.2") at the trial were charged with a third defendant ("D.3"), who was acquitted, with conspiracy, between 23rd February, 1982, and 19th June, 1982, to traffic in a dangerous drug, namely, esters of morphine. The amount involved was a mixture, weighing over 37 kilogrammes, containing over 29 kilogrammes of esters of morphine, known more commonly as heroin base.
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CACC000465/1983 [Application of presumptions under Dangerous Drugs Ordinance to conspiracy.]
Coram: Roberts, C.J., Huggins, V.P. & Barker, J.A. Date: 3, 4, 5 & 26 January 1984 ------------------ JUDGMENT ------------------ Roberts, C.J.: Facts 1. The appellants, who were the first and second defendants ("D.1" and "D.2") at the trial were charged with a third defendant ("D.3"), who was acquitted, with conspiracy, between 23rd February, 1982, and 19th June, 1982, to traffic in a dangerous drug, namely, esters of morphine. The amount involved was a mixture, weighing over 37 kilogrammes, containing over 29 kilogrammes of esters of morphine, known more commonly as heroin base. 2. On 16th June, 1981, there arrived in Hong Kong on the "Anna Maersk" from Bangkok via Singapore, a container of 600 bags of rice flour, consigned to Tai Tom Hong, a firm owned and operated by D.3, a rice importer who had for some while conducted a legitimate business as such. 3. When the "Anna Maersk" reached Hong Kong, customs officers carried out a random search of its cargo. Among the items selected for this was the container of flour bags. 4. D.3, to whom the sacks were consigned, presented the necessary document of title to secure release of the container to himself. He arranged for a transport company to collect the flour, when it was released by customs, and to deliver it to No.30 Pak Tai Street, Kowloon ("No.30"), at which address D.2 was operating a warehousing business under the name of Shing Kay Hong. It was registered in the name of his brother, because D.2 was an undischarged bankrupt. 5. On the morning of 16th June, customs officers examined the bags of flour and discovered in one of them a packet of brown powder, which was later analyzed and found to be heroin base, weighing about 12 kilos. A small part of this heroin was replaced in the plastic bag inside the sack, which was specially marked for identification. The remainder of the heroin was retained in the custody of customs officers. 6. The sacks of flour were released by customs officers, who followed the lorry. This took the sacks to No.30, where D.2 met the lorry and told its crew where to place the sacks in the warehouse at the rear of the premises. The lorry made two journeys. While the second load was being removed from the lorry at No.30, D.1 appeared and watched the sacks being carried into the warehouse. 7. Customs officers kept watch on No.30 from the evening of 16th June until the morning of 18th June. They observed D.2 on the premises on several occasions and saw D.1 visiting them twice on 17th June. All three defendants were arrested on the morning of 18th June. 8. That afternoon, in the presence of D.2, the customs officer,who had marked the sack in which heroin had been found at the docks, identified it in the warehouse at No.30. For the rest of that day customs officers searched all the sacks in the premises. The total of sacks was found to be 1,353, the others having been stored there in accordance with earlier transactions between the three defendants. 9. At about 1.30 a.m. on 19th June, two further quantities of heroin were found in the warehouse in two other flour sacks, which were part of the consignment which arrived on 16th June. The drugs discovered in these sacks, together with that found in the first sack, amounted to the totals set out in the indictment. Explanations of defendants 10. During the 18th and 19th June, the three defendants were interrogated at great length by customs officers. The questions put to them and the answers which were given by them during those interviews were recorded and admitted in evidence without objection. 11. D.1 stated that he owned the Man Fat Trading Company and had signed a contract to buy flour from D.3 in three consignments of 400 bags, for delivery in March, April and May, At a later stage, he asked for an extra 200 bags, thus increasing the last delivery to 600 bags. The consignments, at his request, were to be delivered to No.30. 12. According to D.1, he had sold the 600 bags to D.2 at cost, though D.2 had paid nothing for them and there was no sales contract or invoice. D.1 admitted having visited Bangkok in February and May 1982, to see his mother. He denied all knowledge of the presence of heroin in the sacks 13. During his interrogation on 18th June, D.2 admitted that he was in charge of .the business at No.30 and that he dealt in flour. He said he had bought the flour from Tai Tom Hong, including the consignment of 600 sacks, and that he did so because D.1 was an old friend who had recommended him to do so. 14. On 19th June, after the heroin had been found at No.30, D.2 changed his story and said that, in February, D.1 told him that he (D.1) wanted to find a place to use as a godown and asked him to find somewhere suitable. In March, D.2 negotiated with the landlord on-D.1's behalf for the lease of No.30. D.1 provided D.2 with the money for a down payment on the lease and asked D.2 not to tell anyone that he (D.1) was supporting D.2 in his business. 15. D.2 said that, before the 600 bags arrived, D.1 instructed him not to mix up this consignment with earlier deliveries. He denied all knowledge of the presence of dangerous drugs in the flour sacks. 16. D.3 explained that he had arranged for a bank letter of indemnity to clear the consignment and for the container to be examined and thereafter sent, on the instructions of D.1, to No.30. He denied any knowledge of the presence of the heroin. Crown's Case 17. The first count, on which D.1 and D.2 were convicted, alleges a conspiracy to traffic in dangerous drugs. No criticism was made as to the judge's direction in law on the offence of conspiracy. 18. As against D.1, the Crown did not, in its evidence, rely on any presumptions, since it could not establish that D.1 had control over or possession of, the sacks which contained the drugs. It's case depended upon establishing -
19. As against D.2 and D.3, the Crown's case depended mainly on the presumptions which arise under the Dangerous Drugs Ordinance ("the Ordinance"). 20. The bulk of the drugs was found on premises over which D.2 had custody and control, a fact which he did not dispute. Consequently, by virtue. of section 47 of the Ordinance, he was presumed to have possession of the drugs found at No.30, and to have known the nature of the drugs. In addition, by section 46 of the Ordinance, he was presumed to have had them in his possession for the purposes of unlawful trafficking. 21. The same presumptions arose against D.3, under section 46(2), since his-possession of a bank letter of indemnity, amounted to possession of a document of title to goods, so giving rise to similar presumptions of possession, knowledge and purpose under the Ordinance. Evidence of D.2 22. D.2 gave evidence to the effect that D.1 offered him a job as store-keeper, at a wage of $2,000, in March 1982 and that he rented No.30 as a godown, with money which was provided by D.1, using the name of Shing Kay Hong. 23. He asserted that D.1 was really running the godown and that he himself was merely a store keeper, who was also allowed to use the front of the premises as a shop for his wife. D.1 had told him not to tell anyone that he (D.1) was supporting him. He opened an account at the Nan Yang Bank, with money provided by D.1, and drew cheques on it for the business, but he regarded it as D.1's account. 24. He reiterated what he had said in his statement, to the effect that D.1 had told him to keep the 600 sacks separately from earlier consignments of flour which were being stored by him at No.30. 25. The effect of D.2's evidence was if accepted by the jury, to activate the presumptions of possession, knowledge and purpose, which arise under sections 46 and 47 of the Ordinance, against D.1, by virtue of the operation of section 2(2) of the Ordinance, which reads -
26. Therefore, if D.2' s testimony that he was in possession of the flour, on behalf of D.1 and subject to the latter's control, is accepted, and then only, the case against D:1 would rest not only on circumstantial evidence but on such effect as the presumptions under sections 46 and 47 of the Ordinance might have. 27. It is worth noting that section 2(2) uses "deemed", whereas section 47 uses "presumed until the contrary is proved". Thus the presumption under section 2(2) cannot be rebutted and must be deemed conclusive. D.2 would thus be unable to rebut the presumption that he was in possession of the drugs, though it would be open to him to show, on the balance of probabilities that he did not know of their nature, or that they were not in his possession for the purposes of trafficking. Grounds of Appeal 28. We will comment first on those grounds which we consider had little merit and can be dealt with briefly -
29. We see nothing wrong in the directions given at pages 14, 15 , 16, 86 and 108 of the record. At least four times; the judge warns the jury, in effect, that circumstantial evidence only justifies conviction when it admits of no reasonable explanation other than guilt. 30. Indeed, he has gone further than is-required, since McGreevy v. D.P.P (1) makes it clear that, if a summing- up is adequate as to the general burden of proof, there is no need for a special direction as to circumstantial evidence. 31. If it were mandatory to give such a special direction, a judge would be faced with yet another difficult task, in preparing a summing-up. He would have to decide whether each piece of evidence was direct or circumstantial and to prepare his direction accordingly, as he sometimes has to do, and with great difficulty, when looking for corroboration.
32. The judge was in error. He should have said that D.2 did not know the address of Ah Sze's client, since Ah Sze was only ordering for someone else. But it is questionable whether it would be any less surprising that D.2 should not know the address of the purchaser, rather than of the broker, Ah sze. 33. We do not think that this misdirection, forming part of a long and accurate summing-up, can have had any significant effect on the jury, since it was not one of the principal pieces of evidence on which the Crown case rested.
34. Certainly, the judge did so comment. In some cases, he drew the attention of the jury to two possible inferences to be drawn, one favourable to the defendant and one unfavourable. In other instances he suggested inferences and made comments which could be said to have been critical of D.2, or sceptical of his evidence. 35. Again and again, appellate courts find themselves obliged to remind counsel that a trial judge is not a robot, whose task is limited to regurgitating evidence by rote without emphasis; comment or guidance to the jury. We reiterate the principle that a judge may comment strongly on evidence, may indicate his own views about it and suggest conclusions which the jury may draw, whether or not such comment, views or suggestions have formed part of the case for the Crown or the defence, so long, as he has made it clear to the jury that they are not bound by his opinions and that it is for them to decide on the facts; and provided that his comments never amount to-unfairness to the accused. 36. In this context, we feel obliged to comment that we regarded with disfavour the inclusion, in the grounds of appeal put forward by D.2, of an assertion that D.2 did not have a fair trial. 37. This is a serious allegation, which counsel should never make lightly and which ought not to be included in grounds of appeal unless full particulars of the alleged unfairness are given. None was supplied and, when we asked D.2's counsel for them, he withdrew that ground. 38. To remove any doubt in the matter, however, let it be clear that, after a careful reading of the summing-up, we are satisfied that it was full and very fair; and that the allegation of unfairness should never have been made. Presumptions 39. The main argument in law advanced by both D.1 and D.2 was that the judge was wrong to direct the jury that the presumptions, which arise under sections 46 and 47 of the Ordinance, applied to either defendant. 40. Section 46 provides that, if a person is presumed or proved to be in possession of more than a specified amount of a dangerous drug, he is presumed to be in possession for the purposes of trafficking. We set out section 47 in full, for ease of reference -
shall, until the contrary is proved, be presumed to have had such drug in his possession.
41. There is nothing in the wording of either section which, prima facie, restricts the operation of those sections to offences under the Ordinance itself. And we were referred to two cases decided by the Full Court in 1965, in which that court expressed the opinion that the presumptions created by the Dangerous, Drugs Ordinance then in force might apply to conspiracy charges. 42. That Ordinance did not specifically apply the presumptions to the offence of conspiracy. However, the matter was put beyond doubt by the enactment of section 39 of the present Dangerous Drugs Ordinance -
43. We have no difficulty in concluding that this section is intended to apply the presumptions to a charge of conspiracy to commit an offence against the Ordinance. The words say so clearly and we can see no other reasonable interpretation of them. 44. The presumptions will, of course, have a somewhat different effect, in relation to conspiracy, than they will in relation to a substantive offence under the Ordinance. 45. In the latter event, they operate so as to shift to the accused evidential burdens which, in most cases, he must discharge if he is to avoid conviction. 46. Where a conspiracy is alleged, however, the presumptions merely affect the defendant with possession and knowledge of the drugs and an intention to traffic in them. They do not, per se, establish the conspiracy, though, according to the circumstances, they form an element in the evidence which may point to his guilt, since a person who knows of the presence and nature of drugs, in circumstances which are logically linked to a conspiracy established by other evidence, is likely to have been part of it 47. The presumed joint possession by the defendants of the drugs in the sacks of flour in the warehouse, and the presumption of possession for the purpose of trafficking, if not rebutted, would have been sufficient, without more, to establish complicity in the conspiracy as it was charged. Effect of Crown's limitation 48. However, although the particulars contained in the count of conspiracy did not specify the manner in which the offence was said to have been committed, the Crown, in opening, made it clear that its case was based on an allegation that the conspiracy alleged was to import drugs into Hong Kong. 49. The judge, early in his summing-up, stated that "the whole case simply turns on the importation of dangerous drugs into Hong Kong"; and the case was conducted throughout, by both sides, upon this assumption. 50. In passing, we repeat the surprise, which we expressed during the hearing of the appeal, that the Crown should have narrowed its case in this manner, since it would surely have been more in accordance with the evidence available to the Crown to concentrate on the period of storage in Hong Kong, rather than on the events which preceded it. 51. Counsel for D.1 argued that, as a result of the Crown's allegation that the conspiracy related to the importation of drugs, and only to that, the presumptions were misapplied, since they could only have arisen after the importation of the drugs had been completed. 52. If, the argument runs, the presumptions did arise, they could have been effective only in relation to a conspiracy to traffic within Hong Kong, because on the evidence the defendants could only have come into physical possession of the drugs when the importation had been completed. Thus the presumptions could have related only to a later conspiracy than that which was charged. 53. We do not agree that the wording of section 47 limits the application of the presumptions of possession in this way. The effect of them is to cloak both defendants with possession and knowledge of the drugs on 16th June. Certainly, this does not raise an implication of possession or knowledge at an earlier time, before they arrived at No.30. But in our view, if unrebutted, together with the other evidence, they provide overwhelming evidence of participation in the immediately preceding stage of the conspiracy to traffic, namely, the importation of the drugs. 54. So far as D.1 is concerned, there is evidence which, if accepted, shows that he was involved in the ordering of the consignment of sacks of flour and in the arrangements for their storage on arrival. 55. The sacks were delivered directly from the docks, by prior arrangement between D.1 and D.2. If, therefore, D.1 and D.2 are presumed to have guilty knowledge of the presence and nature of the drugs at the moment of their delivery to No. 30, it seems to us to be an inevitable conclusion that they must have both been parties to the arrangement for the import of the drugs, as the earlier stage in a process of trafficking, which was to be carried forward by storage and finally by sale and distribution. 56. Both applications for leave to appeal against conviction are refused. Sentence 57. In determining the correct sentence, the judge referred to R. v. Chan Chi Ming (2) in which it was suggested by this court that a sentence of 8 to 12 years would be appropriate for trafficking, in amounts of over 1,000 grammes, except in cases of an unusually serious nature where a higher sentence would be justified. 58. We agree with his view that this was such a case, involving over 37 kilogrammes of a mixture containing over 28 kilogrammes of heroin base, a quantity which was estimated as having a retail value of HK$18 Million. The cost in human misery would have been immense. 59. It was argued that the sentence of D.2 should be reduced because he is old and sick. As to this, we agree with the observation of Huggins, J., quoted by the judge, in LAM Hak Hung (3), who observed that the courts cannot regard age as a mitigating factor in offences of trafficking, or the young and old and sick would be used to commit them. There can be no mercy for those who take part in this terrible trade. We see nothing wrong in the sentence of imprisonment imposed. 60. Without wishing to discourage courts from imposing fines in proper cases, if there is any evidence that the defendant can pay, such evidence as there was, and it was unchallenged by the Crown, suggested that D.1 had no resources and was heavily in debt. It is also to be noted that he was granted legal aid for his appeal, and so must have satisfied the Legal Aid Department that he had little or nothing left. 61. We vary the sentence passed on D.1 to the extent of revoking that part of the order which imposed a fine of $25,000 or six months' imprisonment in default. Apart from this, the sentences are confirmed the order for costs remains and the applications for leave to appeal against sentence are dismissed. Representation: D. O'R. Mayne, Q.C., P. FOK (D.L.A.) for D. 1 B Bernacchi Q.C., P. Woo (T. M. Chow & Co.) for D. 2 M. Jennings, Senior C.C. for the Crown (1) [1972] 57 Cr.App.R. 424 (2) [1979] H.K.L.R. 491 (3) Crim. App. 724/72. |