Attorney General v. Wong Kwai-sun

CACC000498/1979

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Coram: Roberts, C.J., McMullin, J.A. & Leonard, J.

Date of Judgment: 26 February 1980

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JUDGMENT

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1. This is an appeal by way of case stated at the instance of the Attorney General. On the 20th of March 1979 the respondent, WONG Kwai-sun, was acquitted in the magistrate's court at San Po Kong of the offence of possession of dangerous drugs under section 8(1)(a) of the Dangerous Drugs Ordinance, Cap. 134. Upon the appeal coming on before Mr. Commissioner Bewley he directed that it should be argued before the Court of Appeal pursuant to his powers under section 118(1)(d) of the Criminal Procedure Ordinance, Cap. 227.

2. The relevant facts are set forth in paragraph 4 of the case stated:

"Upon the hearing of the information, it was agreed between the appellant and the respondent and, found as a fact as follows: On the 20th of February 1979 at about 6.15 a.m. police officers approached the cockloft at the rear portion of 9, Kowloon City Road, Kowloon. One of the police officers knocked at the door and after about 10 minutes the respondent opened the door. The police officers identified themselves and they entered the premises. The premises consisted of three rooms inside one of which two persons were found lying on a bed. The rooms were searched by a police officer who discovered a pipe stem behind a pipe on the wall. This stem contained less than 0.1 gramme of opium. Upon a further search what appeared to be a lady's jacket which fitted the respondent was found in the doorway inside the premises. Inside this jacket was found 5 phials each of which contained less than 0.1 gramme of opium. In another room inside the premises near the same doorway another phial containing less than 0.1 gramme of opium dross was found. The respondent had in her possession keys of which fitted the front door of the said premises."

3. The substance of the magistrate's decision and the questions of law arising therefrom for the consideration of this court are set forth in paragraphs 7 and 8 of the case stated as follows: 

4. In the magistrate's court counsel for the Crown relied primarily on the decision of the Full Court in YU Kwan v. The Queen⁽¹⁾.

5. Delivering the judgment of the court Huggins J. said (page 102):

"We see no reason to hold that there is any limit to the amount of a dangerous drug which must be present before there can be a conviction for possession. Where the amount is so small as to be invisible to the naked eye the burden on the prosecution remains the same, to prove that the accused was in possession of the drug."

6. Since YU Kwan⁽¹⁾ there has been much consideration in other common law jurisdictions of the problem of possession of very small quantities, or traces, of a drug. Modern scientific equipment has made it possible to measure traces which are not visible to the naked eyes.

7. In some of the cases decided in various American and Commonwealth jurisdictions in the decade since YU Kwan the courts have held that, if the substance is measurable by any means, that is sufficient to raise at least a prima facie case against the accused.

8. However, courts in New Zealand, England and United States of America have said that mere measurability is not enough and that the prosecution must show that the quantity of the drug was sufficient to render it usable.

9. At one point in the argument it seemed as though we might be confronted with yet a third possible test viz.: Is the substance detectible? But we think that, for practical purposes, whatever is detectible by scientific means is likewise measurable by scientific means.

10. Two other arguments are often presented to courts. Firstly, in favour of the usability test, it is said that the purpose of the legislation which prohibits possession, viz. protection of the social fabric from the evil effects of drug abuse, will not be furthered by penalising possession of mere useless traces. Secondly, the question has been raised as to whether the minuteness of the traces may constitute a defence on the ground that the accused could not have been aware of their existence and hence lacked the necessary knowledge to support guilty intent (An example is the Canadian case R. v. McBurney⁽²⁾.

11. This cleavage in opinion between the alternative tests of usable or measurable was already apparent when YU Kwan was decided. The occasion for that appeal, as Huggins J. notes in his judgment, was the then recent decision of the English Court of Appeal in Reg. v. Worsell⁽³⁾.

12. In that case the appellant had been charged with being in possession of a quantity of diamorphine and the evidence showed only that he was in possession of a tube in which there were some microscopic droplets which were described by the scientific witness as being impossible to measure and impossible to pour out. The court allowed the appeal and the ratio of the judgment is contained in the brief passage which is cited by Huggins J. and is in these words:

"This court has come to the clear conclusion that inasmuch as this tube was in reality empty ... that makes it impossible to hold that there was any evidence that this tube contained a drug. Whatever it contained, obviously it could not be used and could not be sold. There was nothing in reality in the tube."

Huggins J. went on to compare with that the subsequent decision of the Divisional Court in Reg. v. Graham⁽⁴⁾. In lint scrapings taken from the defendant's pockets very small quantities of cannabis resin, capable of being measured in milligrammes, were found. This was held by the Divisional Court to be a sufficient distinguishing feature to permit it to depart from the decision in Reg. v. Worsell and the conviction was upheld.

13. In YU Kwan the drug was found in a cigarette, taken from the defendant, containing "traces" of diacetylmorphine hydrochloride. This word, which is familiar to those who have dealt with such cases in this territory, may be taken as equivalent to the phrase used in the present case, that the drug was present in quantities of "less than 0.1 mg.". The appellate court in YU Kwan found it necessary to take evidence from the Government Chimist who testified that, by chromatographic testing, it was possible to say that the quantity present in the cigarette exceeded two microgrammes and did not exceed five milligrammes. It was accepted by the court that such a quantity would not be visible to the naked eye.

14. In neither of these English decisions, is there a stated principle in favour of the "usable" test as against the "measurable" test. In Worsell the drug could neither be used nor measured. In Graham, the court, without proposing any general rule, relied on measurability in distinguishing Worsell and upholding the conviction.

15. By contrast in YU Kwan Huggins J. expressly considered the distinction between these two kinds of test. Although he found the authorities which he considered not conclusive in favour of the test of measurability, because in each case the courts had found that the minute traces of the drug were in any event evidence of possession of a larger quantity at a prior time, in effect he preferred that test to the test of usability.

16. The question is whether, in the light of the many more recent authorities which have been cited to us, we should depart from the clear authority of YU Kwan. It is not in doubt that we are entitled to do so. (NG Chuen-kwan v. R.⁽⁵⁾ and the several authorities reviewed therein).

17. Following the case of R. v. Graham, the measurability test was approved in several subsequent English cases. In R. v. Marriott⁽⁶⁾, the appellant was found in possession of a pen knife which had 0.03 gramme of cannabis resin adhering to a broken blade. The Court of Appeal appears to have accepted that, upon a proper direction, the defendant could have been convicted of being in possession of that quantity.

18. In Searle v. Randolph⁽⁷⁾ a defendant was held liable under the Dangerous Drugs Act 1965 for being in possession of a cigarette butt containing 3 milligrammes of cannabis, this being held to be a measurable quantity.

19. In Bocking v. Roberts⁽⁸⁾ the defendant had been found in possession of a hookah pipe, in the bowl of which the presence of 20 microgrammes of cannabis resin was discovered by chemical analysis. Reg. v. Worsell was distinguished by Lord Widgery C.J. on the ground that in Worsell the quantity of cannabis was insufficient to be measured. He went on to say (page 309):

"In my judgment it is quite clear that when dealing with a charge of possessing a dangerous drug without authority, the ordinary maxim de minimis is not to be applied. In other words, if it is clearly established that the accused had a dangerous drug in his possession without authority, it is no answer for him to say 'Oh, but the quantity of the drug which I possess was so small that the law should take no account of it'. The doctrine of de minimis as such in my judgment does not apply, but on the other hand, since the offence is possessing a dangerous drug, it is quite clear that the prosecution have to prove that there was some of the drug in the possession of the accused to justify the charge, and the distinction which I think has to be drawn in cases of this kind is whether the quantity of the drug was enough to justify the conclusion that the defendant was possessed of a quantity of the drug or whether, on the other hand, the traces were so slight that they really indicated no more than that at some previous time he had been in possession of the drug. It seems to me that that is the distinction that has to be drawn, although its application to individual cases is by no means easy."

20. The scientific evidence in Reg. v. Worsell established that although something had been detected within the tube which was suspected to contain the drug the tiny droplets discerned therein were, it was said, "impossible to measure and impossible to pour out". Since what was found was impossible either to measure or to use, it is not surprising that the court concluded that there was "nothing in reality in the tube". That was the point upon which Widgery L.C.J. was able to distinguish Worsell from Bocking.

21. In Reg. v. Carver⁽⁹⁾, there was found in a room occupied by the defendant a wooden box, showing traces of cannabis, and a roach end (a filter made of rolled cardboard) which yielded positive results upon testing. Scrapings from the hinge of the wooden box yielded a quantity of cannabis resin weighing 2 milligrammes. The drug found on the roach end was not weighed, but chemical analysis showed that cannabis was present to an amount not less than 20 microgrammes. For the defence it was argued firstly that the quantities, were so minute that commonsense would equate them with nothing. Secondly, that the mischief which the statute was intended to repress was the use of dangerous drugs and thus that possession of a quantity too small to be used ought to be ignored. Delivering the judgment of the court Michael Davies J. adverts (page 62) to the fact that the learned Lord Chief Justice had distinguished Bocking from Worsell on the basis that in the former case there had been no measurable quantity, whereas in Bocking the quantum had been susceptible of measurement. He sets out the passage from the judgment of Widgery L.C.J. which is reproduced earlier in this judgment and adds:

While therefore upholding the notion that the maxim de minimis non curat lex should not be applied in drug possession cases, the court seems to suggest a two-fold test. If the presence of a drug can only be established by chemical or other analysis it should be regarded as nothing. But if the quantity is susceptible of physical weighing, it will not amount to possession unless shown to be capable of use. For practical purposes, however, it would seem that Reg. v. Carver establishes the single test of usability, which has been applied in at least one case since then - Reg. v. Webb⁽¹⁰⁾.

22. In certain of the American authorities to which we were referred (as quoted in the Criminal Law Review for 1977) convictions for possession of very small quantities of drugs were upset upon appeal on the basis that the quantities were so minute that it could not reasonably be said that the defendant could have been aware of their existence [The People v. Leal⁽¹¹⁾ and The People v. Aguila⁽¹²⁾]. We have, however, no information as to the precise wording of the statutes under which those cases were taken.

23. In Hong Kong, the legislation provides a presumption as to knowledge as well as a presumption of possession so that we need not consider cases which deal with actual knowledge of possession of minute quantities of drugs.

24. There remains, however, the question of how far the interpretation of prohibitory provisions should be influenced by the policy of the legislation.

25. It is this approach which underlies the adoption of the usability test in Reg. v. Carver and also in the New Zealand case Police v. Emirali⁽¹³⁾. In the latter case, Woodhouse J., delivering the judgment of the Court of Appeal concluded as follows:

"It is important that the courts should give every proper support to those who have the responsibility of controlling the serious problem of drug abuse, but when one attempts to understand the ambit of s. 6 of the Narcotics Act it is necessary to keep in mind that the real purpose of the statute is not to proscribe the existence of narcotics as an end in itself. Instead it is to prevent their illicit use. That general purpose indicates the sort of test that can and should be applied in such a case as this, and we think Mahon, J. was quite right in the conclusion he reached. Of course, a decision as to the utility of a given sample of a narcotic substance will depend not merely upon its size or whether it is capable or in capable of measurement by weight but also upon the nature of the narcotic itself, and the condition in which the sample is found. In addition, it may be relevant to consider whether the sample might reasonably be used in the circumstances of the case to supplement a similar sample or samples in order to give efficacy to the whole. Considered in that way it is our opinion that the test relied upon by Mahon J. is in accord with the purposes and intent of section 6 of the Act and provides a practical and realistic solution for the sort of issue raised in this case. We might add that the discovery of a slight quantity of a narcotic may often support a prosecution based on earlier possession; and in other cases a charge may lie under s.7 of the Act which is concerned with paraphernalia."

26. The same approach, in cases taken under legislation forbidding the possession and use of drugs, is to be found in the American cases of People v. Sullivan⁽¹⁴⁾; Pelham v. State⁽¹⁵⁾ and State v. Urias⁽¹⁶⁾.

27. The usability test has certain obvious practical advantages. Firstly, it will better serve the primary purpose of the legislation, which is the prohibition of the misuse of drugs; secondly, it will avoid unrealistic concepts of substance and possession; thirdly, it will remove from prosecutors the temptation to seek convictions in cases which involve marginal delinquency; fourthly, the "usable" approach will relieve the government analyst from having to carry out a difficult and lengthy testing process; scheduled drugs differ greatly in their potential for use in very small quantities and such tests will only be necessary where the charge involves possession of one of the more unusual drugs as, for example, L.S.D.

28. The adoption of the "usability" test would not mean that minute but unusable traces would cease to be of any interest to the Crown. They would retain an evidentiary value for example, in proving the presence of a scheduled drug on or in an instrument or container, in order to bring home a charge of possession of equipment under section 36 of the Ordinance.

29. The disadvantage is that, whenever very small quantities are involved, it will be necessary for the prosecution to adduce evidence as to whether these quantities are capable of use. This may be difficult, since the possibility of use varies from drug to drug. We do not regard this as an objection which outweighs the utility of the usable test. It may be that this difficulty could be largely solved if the legislation were amended to provide for a form of certificate; this would in most cases obviate the necessity of calling a witness. Therefore, although it cannot be said that the decision in YU Kwan was wrong in principle we think that the time has come to follow a different principle i.e. that of usability.

30. The effect of adopting the usability test will be that, whenever the prosecution seek to prove possession of a dangerous drug in "trace" quantities and rely on any of the presumptions in section 46 and 47 of the Ordinance, it will be necessary for them to show that the drug was present in a usable quantity, before the presumptions of possession and knowledge can arise.

31. We must add that where such traces are found combined with other substances in a mixture which can be physically weighed it will be open to the court, without such special evidence, to infer from the nature of the mixture and the way in which it is packaged or otherwise disposed that it is capable of being used in contravention of the Ordinance.

32. In the present case the magistrate, adopting the usability test, found that the presumptions had been raised but that they had been rebutted for want of evidence that the traces were capable of use. Although we conclude that he was right to find no case we think that the logical result of applying this test obliged a finding that the presumptions had not been raised.

33. The answer to the first and second questions in the case stated will be 'Yes'. The third question does not therefore arise.

Representation:

Miss Beeson for Crown/appellant.

Ribeiro (D.L.A.) assigned for respondent.

(1) (1969) H.K.L.R. 96.

(2) (1974) 26 C.R.N.S. (C.A.) 114.

(3) (1970) 1 W.L.R. 111.

(4) (1969) 2 All E.R. 1181.

(5) (1974) H.K.L.R. 319.

(6) (1971) 1 All E.R. 595.

(7) (1972) Criminal Law Review 779.

(8) (1974) Q.B. 307.

(9) (1978) 3 All E.R. 60.

(10) (1979) Criminal Law Review 462.

(11) 413 P. 2d. 665, 668.

(12) 35 Cal. Rptr. 516, 518.

(13) 2 N.Z.L.R. 476, 480.

(14) (1965) 234 Cal. App. 2d. 562, 564.

(15) 298 S.W. (2d.) 171; 164 Tex. 226 (1957).

(16) 8 Ariz. App. 319 (1968) 446 P. (2d.) 48.