Yan Kwok Kwong v. R.

CACC000511/1993

IN THE COURT OF APPEAL

1993, NO. 511
(Criminal)

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Coram: The Hon. Mr. Justice Power V-P, Mortimer J.A. and Mayo J.

Date of hearing: 25 August 1994

Date of delivery of judgment: 25 August 1994

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J U D G M E N T

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Mayo J.

1. The Applicant was after a trial before Deputy Judge Pang convicted of trafficking in dangerous drugs and sentenced to imprisonment for 9 years. The Applicant seeks leave to appeal against his conviction. He also sought leave to appeal against the sentence of imprisonment imposed upon him. This was with our leave withdrawn.

2. The facts of the case are quite simple.

3. A party of police officers were stationed at premises at 2 Sai Cheung Street, Western in the afternoon of 6th July 1992. The Applicant was seen to enter flat B1 on the 19th floor at about 4:55 p.m. Shortly after 6:00 p.m. he was seen emerging from the flat. He was intercepted by police officers in the ground floor lobby and thereafter a body search was conducted. Some keys were found on him. He was taken to the flat on the 19th floor and one of the keys found on him fitted the lock on the door.

4. Police officers entered the flat and conducted a search. 565 grammes of a mixture containing 253.04 grammes of salts of esters of morphine were found in the flat together with a chopper and a number of cellophane packets. When the dangerous drugs were found they were in 26 of the plastic containers. The chopper was in a paper sheath.

5. Officers of the Identification Bureau attended at the scene and conducted an investigation. This consisted of examining the exhibits which had been found and undertaking a fingerprint lifting exercise. The result of the investigation is referred to in the admitted facts which were before the court. Traces of heroin were found on the chopper and a thumb print of the Applicant was found on the said sheath. Also traces of heroin were found on finger nail cuttings of the Applicant.

6. The Applicant gave evidence. In essence he said that a friend of his Kin Kor had offered to reward him financially if he assisted him in his activities in smuggling western medicines to China. He had agreed to this.

7. Kin Kor had earlier in the afternoon met him in a restaurant in Wan Chai. He had told him that a consignment of medicine had arrived and that it would be at premises in the Western District. He had given him the key to the flat and told him to go there to assist him in unloading the medicine from the lorry and moving it into the flat. Kin Kor said that he would be away for about 5 minutes. As he did not return he went to the address he had been given and entered the flat in the manner described by the police.

8. He saw in the flat wrappers scattered on the mattress there. He threw them into the rubbish tin. He assumed that this was how the traces had got on his hands. He could think of no explanation as to how the fingerprint had got on the sheath.

9. After about an hour he had decided to go and telephone Kin Kor. For this purpose he went downstairs. When he did so he was intercepted by the police party. He denied any knowledge of dangerous drugs in the premises.

10. Originally, there were 11 grounds of appeal lodged in the Amended Perfected Grounds. Before us, Mr. Beaumont only substantively argued two of them. When the judge had summed up to the jury, he had failed to adequately set out the ingredients of the offence of trafficking in dangerous drugs. He had directed the jury that packaging and weighing the dangerous drugs was encompassed within the definition of this.

11. The problem was that there was insufficient in this direction to include trafficking in the dangerous drug. It should have been made clear that the packaging would be with a view to the disposal of the dangerous drug.

12. We do not think that this criticism assists in this case. The jury had before them evidence which if believed showed that the Applicant was in the said flat for over an hour and that when the police a short time later searched the flat the dangerous drugs were found. There was accordingly overwhelming evidence that the Applicant had been in possession of the dangerous drugs during this period. The fact that the dangerous drugs were found in a number of packets must have convinced the jury that it was intended that there would be trafficking in the dangerous drugs.

13. In this connection, it is pertinent to refer to the passage on p. 8 of The Queen v. Diu Lap Nin, Cr. App. 1439/1983 :

"As a matter of interpretation, the phrase "dealing with the dangerous drug" is sufficient, in our view, to cover any activity which can be said to be related to, or connected with, the dangerous drug, including storage for subsequent disposal."

14. This would certainly appear to embrace the activities undertaken by the Applicant in the afternoon of 6th July.

15. The complaint in Ground 4 was that the judge had not given sufficient assistance to the jury on whether an inference could be drawn that the Applicant had engaged in the packaging of the dangerous drugs or that he knew that the substance was a dangerous drug.

16. Knowledge was not an issue in this trial. This being the case the general directions given by the trial judge at p. 6 were entirely sufficient to provide the jury with adequate guidance on this. On the facts which were before the jury it is difficult to see how these inferences could not be drawn.

17. There is no reason to suppose that this conviction is either unsafe or unsatisfactory. Accordingly, we grant leave for this application and hear the substantive appeal and the appeal is dismissed.

Mortimer. J.A.

18. I agree that this appeal must be dismissed. However, I would add one or two words of my own having regard to the submissions that have been presented to us by Mr. Beaumont.

19. In directing the jury on trafficking, the judge said this:

"The term 'trafficking in relation to a dangerous drug' as defined in the Ordinance (as I am quoting from it) includes 'importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drugs'. To give you an example, if a person engages in the activity of weighing and packaging of dangerous drug, such activities would come within the meaning of dealing in or with the dangerous drugs as defined. That person would be trafficking in the drugs. No money needed to be involved or changed hands."

20. The judge was therefore directing the jury that if they were satisfied that the applicant was engaged in weighing and packaging the drug, that amounted to the actus reus of the offence. In giving that direction, the judge was following two judgments of this Court. In The Queen v. Diu Lap Nin Cr. App. 1983 No. 1439 the then Chief Justice said :

"As a matter of interpretation, the phrase 'dealing with the dangerous drug' is sufficient, in our view, to cover any activity which can be said to be related to, or connected with, the dangerous drug, including storage for subsequent disposal."

That definition was considered by another division of this Court in Lau Chi Sing [1987] HKLR 703. Silke J.A., as he then was, giving the majority decision said:

"Of the interpretation in Diu Lap Nin, in my judgment, the word referred to in the definition of trafficking constituted separate offences. The phrase 'otherwise dealing in or with' is not one which qualifies those preceding words, nor do I think the construction to necessarily mean that simple possession amounts to trafficking."

For my part, I am satisfied that this Court is bound by those earlier interpretations of trafficking in the Ordinance. For my part also, had this Court not been bound by those earlier decisions, I would have found it very difficult to interpret trafficking and, in particular, the words "procuring, supplying or otherwise dealing in or with the dangerous drug" as including weighing and packaging of a dangerous drug simpliciter as was left to the jury in this case. To my mind, when the whole of the definition is read together, the words "dealing in or with" must involve some disposal of the drugs, and it is important that the aclus reus of the offence and the evidence by which that offence is proved are kept strictly separate.

21. So far as the instant case is concerned, the point would not even if it been open to the Court to take it - have had any effect upon the result of this appeal. The evidence was such that anyone involved in the weighing and packaging of this quantity of dangerous drug must inevitably have been doing this for the purposes of disposing of it or trading in it.

Power. V-P

22. I also am satisfied that the appeal must be dismissed and only add that I also consider that we are bound by the previous decisions of this court to which reference has been made by my brother Mortimer.

Representation:

Mr. Ben Beaumont inst'd by Sammy S. Li & Co. for the Applicant.

Mr. William Lam, S.C.C. (Attorney General's Chambers) for the Crown/Respondent.