Cheung Man-wah v. The Queen

CACC000484/1976

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Coram: McMullin J. in Court.

Date of Judgment: 28th May, 1976.

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JUDGMENT

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1. The appellant was arrested on the 28th February, 1976 by Preventive Service officers at Shun Ning Road, in Shumshuipo. He was said to have been walking in a hurried and suspicious manner. On being searched, it was discovered upon his person a brown paper parcel in which there were ten packets containing a substance, which there were ten packets containing a substance, which upon later examination, was found to be 143 grammes of a mixture containing 38.1 grammes of salts of esters of morphine. The appellant had $443.80 in his possession.

2. He was taken to the Preventive Service headquarters and cautioned and thereupon he made the following statement :

"I CHEUNG Man-wah understand all the above I've no amendment. I CHEUNG Man-wah owing to sickness, coupled with unemployment took the risk to carry drugs for other persons wage at $100 per occasion. Hope the court will give a chance. I CHEUNG Man-wah will turn over a new leaf."

He was then handed over to the police and on the evening of the same day he made a further statement, though apparently not under caution, the substance of which was that he had been given the parcel by a stranger while he was having tea at a restaurant and that he agreed for a fee of $100 to carry the parcel to be delivered to a person who would contact him in due course. He said that it was only at the time of his arrest that he became aware that the substance was "heroin".

3. These statements were challenged at the trial but were ruled admissible in evidence. The Crown relied upon the several relevant presumptions in the Dangerous Drugs Ordinance. The appellant gave evidence the substance of which was the same as that contained in his statement to the police, denying that he was aware that the parcel which he had been given contained anything in the nature of dangerous drugs. However, in cross-examination he admitted that he realized he was being asked to do something illegal and that he did not open the parcel. He also said that he was suspicious at being asked to carry this parcel for $100.

4. In his Statement of Findings, following upon the conviction of the appellant, the magistrate recited the facts including the admission by the appellant of carrying the parcel and his denial of realizing that it contained dangerous drugs. He then referred to the presumptions as to knowledge contained in s.47(3) of Cap. 134 and he went on to say :

"At the trial the said appellant attempted to show he was not aware of the contents of the packets but I found the arguments and version of the incident presented by the said appellant unacceptable."

5. Mr. Mumford, who appeared for the appellant upon the appeal, concedes that the first of the statements made by the appellant appears to contain a confession to carrying dangerous drugs but he says that it must be read in the light of the subsequent statement made to the police and of the defendant's evidence in court and that the sum total of all three statements is that the appellant was admitting no more than that, having just lost his job, he was persuaded by the offer of $100 to carry out a suspicious errand involving some substance which he felt might be unlawful to possess.

6. The principal ground upon which it is said that this conviction should be regarded as unsafe or unsatisfactory is that the magistrate gave no reasons for expressing the view that the appellant's explanation was unacceptable. As I understand him, Mr. Mumford also maintains that the words which I have quoted do not even amount to a positive finding that the magistrate did not believe the appellant. But to my mind, Mr. Graham, for the Crown, is clearly right when he says that although that finding may not be as happily expressed as it might have been, the words mean simply that the magistrate was not accepting as true the explanation put forward by the appellant in pursuance of the duty imposed upon him by the Ordinance to give an innocent explanation of his possession of the drugs, upon a balance of probabilities. The magistrate does not refer to the first statement with its strongly confessional character and one must assume that he also took the view Mr. Mumford urges upon this court viz. : that the sum total of the appellant's several explanations was that he was an innocent carrier of some substance, the nature of which he did not know. Mr. Mumford argued that where an accused person gives an explanation which is not, on the face of it, unreasonable and when he is not tripped up in cross-examination upon anything which he has said then, unless the magistrate can fix upon some aspect of his demeanour in court as denoting his untruthfulness such an explanation ought to be accepted. At all events, he says, if rejected, the magistrate must give some reasons for rejecting it.

7. With regard to the first of those propositions, I can only say at once that I do not agree. A witness may give evidence convincingly and be adroit in cross-examination yet the tale which he tells may fail to commend itself as the truth. In drug cases, such as the present where the onus is upon the defendant to show upon the probabilities that he is in innocent possession and where the evidence is restricted to the bare showing of possession under circumstances which otherwise yield no overt signs of guilt the magistrate will necessarily be confronted with a task of estimating the whole situation and deciding as a matter of reasonable inference from the nature of the explanations whether the story given might reasonably be true.

8. In LAW Keung v. The Queen⁽¹⁾, to which Mr. Mumford himself referred me in this regard, the learned Chief Justice, Sir Ivo Rigby, had this to say :

"As a matter of elementary justice, if a person is to be convicted of an offence he is entitled to know the reasons why he is so convicted and where he has given evidence and called the witnesses he is entitled to know why, and for what reason, his evidence and that of his witnesses is disbelieved - if indeed that is the case - or why the evidence of a prosecution witness or witnesses is preferred in the realms of credit and credibility to that of himself and any witnesses he may have called. For my part, I have always taken the view that as a matter of practice magistrates should, when necessary, set out fully and concisely not only their findings of fact but the reasons for their decision and their evaluation of the evidence of the witnesses, both of the Crown and the defence, given before him. However, there are cases where, as the Full Court pointed out in that passage in the LAM Tin-chung case to which I have referred, the court can do little more than say which of the witnesses it believes. If a magistrate can fairly say why he believes or disbelieves a witness, then so much the better; but it is not always easy to give a reason for such belief or disbelief."

The final words in that passage seem to me to be directly in point in relation to the present objection.

9. Mr. Graham for the Crown sought to argue, relying upon the decision in Reg. v. Warner⁽²⁾, that even if the appellant's story had been accepted by the magistrate to the extent that the magistrate believed that the appellant had only been aware that he was carrying some substance that might in some vague way be affected by illegality that was in any case sufficient to support his finding of guilt. He suggested that in charges under the dangerous drugs legislation there is no need to show mens rea I cannot agree. As Mr. Mumford points out The Queen v. Warner⁽²⁾, although it involved the consideration of a conviction upon a charge of illegal possession of drugs, is a decision involving the consideration of the quite different statutory provisions obtaining in the law in England. In Warner's Case⁽²⁾ a majority of the judges in the House of Lords appear to have held that an offence under s.l(1) of the Drugs (Prevention of Misuse) Act 1964 is an offence of an absolute character. A great part of the lengthy and learned judgments delivered by the several Lords of Appeal is taken up with the consideration of how it may be open to a person who is found in possession of a container containing forbidden drugs to show that he nevertheless is not in possession of the drugs as distinct from the container. The learned judges embarked upon searching examination of the whole notion of "possession" in law involving the consideration of a large number of older decisions. The case is of a very great interest in its discussion of basic principle and also as disclosing some sharp divergences in opinion between the several judges as to when it may be said that a person of whom it is proved that he knows that he is in possession of something, must be assumed to know also the nature of the thing of which he is possessed. The position is quite different in Hong Kong where the local legislation applies the familiar statutory presumption upon the showing of mere possession of a container inside which drugs are discovered upon examination. It may well be that we have a happier situation here, for in the judgment of Lord Pearce in Reg. v. Warner⁽²⁾ there appears the following somewhat plaintive passage:

"It would, I think, be an improvement of a difficult position if Parliament were to enact that a person has ownership or physical possession of drugs he shall be guilty unless he proves on a balance of probabilities that he was unaware of their nature or had reasonable excuse for their possession." (Page 307b).

That is precisely the situation we have in Hong Kong and it involves somewhat different considerations when one comes to estimate the extent of the onus placed upon an accused person to show he is innocent. In Reg. v. Warner⁽²⁾ the majority opinion appears to have been in favour what is said by Lord Parker in Lockyer v. Gibb⁽³⁾ at page 249 where in dealing with the conviction of a woman under a regulation made under the Dangerous Drugs Act 1965 for being in possession of a scheduled drug the learned judge said :

"In my judgment, under this provision, while it is necessary to show that the defendant knew she had the articles which turned out to be a drug, it is not necessary that she should know that in fact it was a drug or a drug of a particular character."

In Hong Kong if a magistrate or judge were disposed to accept an explanation by an accused person to the effect that he thought he was in possession of a substance which was not the substance charged but some substance the possession of which was innocent and lawful, the accused would be entitled to an acquittal. This constitutes a major difference between the position here in Hong Kong and that prevailing in the United Kingdom. There are however some observations in the judgment of Lord Pearce in Warner's Case⁽²⁾ which will be taken to heart by judges and magistrates in Hong Kong when charged with the duty of deciding whether or not the explanation of innocent possession is reasonable, always keeping the legislative difference between the two territories in mind. Having referred to the fact that the English Act forbids possession of these particular drugs whether possession is with an innocent or guilty mind or for a laudable or improper purpose, since the possession of the drugs is absolutely forbidden, the learned judge goes on to say :

The final words in that passage express what seems to me the plainest common sense. I would suggest that they afford a very fair guideline for any judge or magistrate even in this territory in forming an opinion as to whether or not an accused person who says that he did not know that the thing he was carrying contained dangerous drugs should be regarded as telling the truth. I do not mean of course that in every case an accused must show that he has opened the container and inquired as to its contents. But where it is clear that he has not done so and does not even claim to have done so, especially under circumstances such as were revealed in the present case involving, in addition, the admission by the accused of being suspicious as to what he was asked to do, then one would think that the only reasonable conclusion that any magistrate could come to was that the accused had failed to discharge the onus placed upon him.

10. The accused appealed also against the sentence which was of two years coupled with a fine of $10,000. In view of the quantity of the drugs sentence of imprisonment was clearly not excessive. I was at first inclined the question the propriety of the fine in view of the fact that the accused maintained he was out of a job and was in any event a poor man. I think Mr. Mumford was right when he pointed out the magistrate appears to have taken that course in view of the fact that the accused had been able to put up cash bail $10,000. The suggestion was made before me that some of that may have been borrowed money but in all the circumstances I do not think that the fine was imposed upon a wrong principle, and the appeal against sentence is also dismissed.

Representation:

(1) Criminal Appeal No. 625/72.

(2) (1969) 2 A.C. 256.

(3) (1967) 2 Q.B. 243.