The Queen v. Li Kwan Yin

CACC000480/1987

BETWEEN

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Coram: Hon. Kempster, J.A., Power & Penlington, JJ.A.

Date of Hearing: 19th May 1988

Date of Judgment: 20th May 1988

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J U D G M E N T

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Power, J. A.:

1. This applicant faced two charges of trafficking in a dangerous drug contrary to s.4 of the Dangerous Drugs Ordinance. The particulars of the first charge were that he and CHAN Chi-yin, the 1st defendant, on 10th April 1987 inside Ma Tau Wai Post Office at No.11, Farm Road, Tokwawan, Kowloon, unlawfully trafficked in a dangerous drug, namely 8,170.89 grammes of a mixture containing 7, 284. 93 grammes of salts of esters of morphine. The 2nd charge was that he and the 1st defendant on the same day inside Mongkok Post Office at 37, Bute Street, Mongkok, unlawfully trafficked in a dangerous drug, namely 8,169.04 grammes of a mixture containing 7,230.94 grammes of salts of esters of morphine. In each case the charge involved the carrying and posting to New York of a parcel containing dangerous drugs. Each of the parcels was carried in a car belonging to the applicant and driven by him from Jubilee Gardens in Shatin to, in one case, the Ma Tau Wai Post office and, in the other the Mongkok Post Office.

2. The evidence was that the applicant agreed to assist in the posting of the parcels, helped to carry them from a flat in Jubilee Gardens to his car and then drove the car to the post offices; when the car arrived it was however, in each case, the 1st defendant, accompanied by the applicant, who carried the parcel into the post office, and effected the actual posting thereof. There was as can be seen from the facts, no direct evidence to establish that the applicant knew anything as to the real nature of the contents of the parcels.

3. The Crown relied upon s.47(1)(a) of the Dangerous Drugs Ordinance to establish possession on the part of the applicant and upon s.47(3) to prove knowledge by the applicant of the nature of the drugs. The Crown further relied upon s.46(d) to prove that the applicant had the drugs in his possession for the purpose of unlawful trafficking.

4. It is necessary before examining the directions given by the trial judge to the jury to analyse with care the nature of the evidence that was presented. There was no dispute as to the facts set out above. It was admitted by the applicant that he helped to carry the parcels down to his car, that he then drove his car in turn to the post offices and that he accompanied 1st defendant into the post offices while he posted the parcels.

5. Mr. Rodway, who appears with Mr. Westbrook and Mr. Chan for the applicant, contends in hisfirst ground of appeal that the learned trial judge consistently misdirected the jury on the meaning of the word "trafficking" by telling them throughout. the summing up that the offence consisted of "handling" dangerous drugs. The use of this term by the judge is best exemplified by reference to a passage which appears at p.3 of the Summing-up where the trial judge said:

"If the accused, in relation to the first, second and fourth counts, knew that the parcels they either assisted in carrying or posting or - in the case of the 3rd accused - in packing as well, contained dangerous drugs, then those facts, as a matter of law, would amount to a sufficient handling of those dangerous drugs to establish the offence of trafficking.  And the large quantity of drugs in those parcels with a wholesale value - merely a wholesale value including the drugs in each count, of nearly 6.4 million is, by itself, powerful evidence of trafficking on the part of anybody who knowingly handled those particular drugs."

6. The definition in the Dangerous Drugs Ordinance uses the phrase "dealing in or with" rather than the word used by the judge "handled". I have no doubt that the carrying in the car which the trial judge referred to as "handling" was a dealing with the dangerous drugs and that the trial judge was correct to say that such a carrying would, if knowledge was established, amount in law to trafficking. While it would, I agree, have been preferable to use the words of the statutory definition, I am not persuaded that the use of the term "handling" in the circumstances of this case could have in any way worked to the prejudice of the applicant.

7. The second ground argued was that the trial judge directed the jury that on counts 1 and 2 against the applicant presumptions of possession, knowledge and possession for the purpose of trafficking arose but failed to direct them that those matters were not conclusive on charges of trafficking in a dangerous drug contrary to s.4 but were only evidence from which, together with the rest of the evidence, they might conclude that the applicant was guilty of actual trafficking within the true meaning of that word.

8. This suggested failure to direct is again exemplified by the passage at p.3 which I have just read and also by the passage at p.24 where the trial judge said referring to the applicant:

"If he has rebutted the presumption, then I would think you would have no difficulty in delivering a verdict of not guilty. If you consider he has not done so, if you consider that the evidence is evenly balanced, he then has failed to and you would bring in a verdict of guilty if you are satisfied that the charge has been proven against him on the first count beyond reasonable doubt."

9. It is suggested that the trial judge when telling the jury that, if the applicant failed to rebut the presumptions, they should return a verdict of guilty omitted a necessary step, i.e. that he failed to tell the jury and to direct them in appropriate terms that the presumption only established possession for the purpose of unlawful trafficking and not trafficking and that possession for the purpose of unlawful trafficking having been established they must look to the evidence to determine whether or not actual trafficking had been proved.

10. To evaluate this submission one must look at the evidence and ascertain the issue or issues which were for the determination of the jury. The applicant did not contest that he agreed when asked by the 1st defendant to assist in the posting of the parcels. There was no issue that he carried the parcels in his car to the post offices and that he accompanied the 1st defendant when he went into the post offices to post the parcels. This evidence was, I am satisfied, sufficient to establish trafficking in the contents of the parcels whatever those contents might turnout to be. This trafficking would, however, amount to the offence of trafficking in dangerous drugs contrary to the Ordinance only when it was proved that the applicant had knowledge that the contents were dangerous drugs. This, as the trial judge told the jury, was the issue for their consideration. He was, in my view, quite right to tell the jury that in the circumstances of this case if the applicant failed to rebut the presumption of knowledge the offence charged was proved.

11. I turn now to ground 4 in which it was argued that the trial judge failed adequately to direct the jury upon the effect of lies, if any, told by the applicant when making his statement to the customs officer. Again the issues to be determined by the jury must be carefully examined when considering this ground. Argument on this ground suggested that there was no evidence upon which the jury might have found that any lie had been told by the applicant when giving his statement and that it was wrong and unfair for the prosecution to cross-examine upon this basis. Suffice to say in this regard that I am satisfied that there was ample evidence from which the jury might have concluded that the applicant was not truthful, i.e. that he was lying, when he made the statement. Whether or not he did tell lies in that regard was a matter for the jury and it was squarely left to them for their consideration. The real complaint is as to the adequacy of the trial judge's direction. The trial-judge said:

"The Crown, on the other hand, points to the more active role the 2nd accused played during the posting activities compared with Ah Sai. We know, however, that Ah Sai was lame. That is a proper matter to take into account. It is pointed out to you that the 2nd accused, after his car was loaded with the parcels, he never touched any of them again. You have had the benefit of observing him in the witness box. The crown have asked you to draw adverse inference against the 2nd accused from his performance as a witness.

And you will recollect it was put to him that he had lied in his statement to the customs officer, the statement being before you as exhibit P182. But the 2nd accused, unlike the 1st accused, denied that he had lied. So there were no admissions of lying by the 2nd accused. You have seen his statement and you have listened to the relevant parts of it read out to you as well. And you have seen the photographs with the 2 parcels in their obvious different open condition in the Customs Offices when the accused had said he did not recognise them.

It is for you as jurors, and not for counsel or myself, to decide whether the 2nd accused lied when he said that he did not recognise those parcels; and if he did lie, the reasons for lying. would merely point out that there are no admissions in his statement as there were none in the statement of the let accused."

The trial judge went on to address himself again to this question at the bottom of p.23 saying:

"As to any inferences you might draw from any lies you may be satisfied that any accused may have told, those inferences are of course again entirely matters for you. Again I do not intend to repeat the details of counsel's submissions as to whether the 2nd accused has rebutted the presumption. That is a matter entirely for you."

12. It is suggested that it was incumbent upon the trial judge to go on and to direct the jury as to the use that might be made if they were satisfied that lies had been told, of the fact that lies had been told when making a determination as to guilt. When this matter is placed in the context of this trial it is clear that directions as to lies were given to assist the jury in their determination as to the credibility of the applicant, i.e. to assist them in determining whether or not his evidence could be beleived to the extent that it overthrew the presumption. The Crown never relied upon the lies to establish knowledge of the contents of the parcels and the jury were never directed that they could or should make use of the lies for that purpose. The trial judge directed them that knowledge was established by the presumptions. He then told them that when determining whether or not presumption was rebutted they should look at the evidence, including the lies if any told by the applicant. Indeed just before the passages which I have read the trial judge had said to the jury :

"So going back to the first count, as far as the 2nd accused is concerned, it falls to him too to rebut the presumptions. The Crown pointed to the vague arrangements for tennis, the willingness of the 2nd accused to at least helped the 1st accused for several hours for what on the 2nd accused's own evidence was a wholly unanticipated activity." (The underlining is mine.)

The trial judge was telling the jury that if they found that he told lies then they must ask themselves whether they could believe his evidence to the extent that it rebutted the presumption. He had further, at p.13 of his Summing-up, clearly and correctly directed the jury generally as to the inferences that could be drawn by them when he said:

"But there are limits to the inferences you may draw. First, the law provides that you may only draw inferences from primary facts already established beyond reasonable doubt if no other inference can reasonably be drawn. So if from facts established beyond reasonable doubt several inferences may be drawn, some innocent to an accused and some adverse, then you may not in that conflicting situation draw any adverse inferences. To do so would not only be unfair but dangerous, for in a criminal trial in Hong Kong suspicion, even strong suspicion, is not enough."

13. I am satisfied that the Summing up was in no way inadequate when it came to dealing with the question of lies and that there is nothing that can be properly urged upon this court in that regard.

14. I turn finally to the last ground of appeal which was that, in all the circumstances, there remains a lurking doubt whether the applicant was properly convicted in the light of the above grounds and the tenuous circumstantial nature of the case against him. For my part I have no lurking doubt as the propriety of the convictions. The evidence squarely established the presumptions. If they were not rebutted the jury could come to no verdict other then guilty of trafficking. Whether or not the jury accepted the evidence of the applicant to rebut the presumptions was a matter entirely for them it was left to them and it is clear that they did not do so The application must, in my view, therefore, be refused.

Kempster, J.A.:

15. This is an application which at the outset appeared to me to raise a number of difficulties. I now believe that the difficulties have been resolved for reasons just outlined by may Lord Mr. Justice Power. I will therefore confine myself to one or two aspects of the matter which appear important.

16. "Trafficking" and possessing for purposes of unlawful trafficking are distinct offences albeit a trafficker may well also be guilty of possessing for the purpose of unlawful trafficking though not vice versa. In the instant case I am satisfied that, by carrying dangerous drugs in his car to post offices for despatch to third parties, as to which there was no dispute, the applicant was dealing with the dangerous drug and thus "trafficking" within the meaning of s.2(1) of the Ordinance. Further, and as a result of those admitted facts, knowledge was the only significant issue for the determination of the jury and on "this aspect the trial Judge's summing-up concentrated. Once the jury accepted, as they must have done, that the applicant knew the contents of the parcels, involvement in a joint enterprise became an inescapable inference. As to the direction on lies the issue of mendacity arose not in the context of the prosecution case but to assist the jury in assessing the applicant's evidence as to his knowledge and state of mind at the material times when considering whether or not statutory presumptions were rebutted. I have no lurking doubt as to the safety of the convictions and agree that the application for leave to appeal against conviction should be refused.

Penlington, J .A.:

17. I am also satisfied that this application must be refused. It seems to me that there was only one issue here for the jury, that was the knowledge of the applicant as to the contents of the boxes. In my view the question of trafficking never really arose. I am satisfied for the reasons which have already been given that the direction on this aspect was perfectly. The matter which did concern me was the way in which the trial judge dealt with the question of lies and how they were to be considered by the jury based on the well-known case of Lucas⁽¹⁾. Here it was not put forward as positive evidence but only to be considered as to whether the jury believed the applicant when ha said he did not know what was in the cartons. However, I am now also satisfied that taking this Summing-up as a whole the direction on this was correct.

(1) [1981] 1 Q.B. 720

Representation:

Mr. Findlay, Q.C. & A.A Bruce (Crown Prosecutor) for the Respondent.

Mr. G. Rodway & S. Westbrook & A. Chan (C.W. Leung & Co.) for the Applicant.