The Queen v. Lau Chi Sing

IN THE COURT OF APPEAL

1986, No. 567
(Criminal)

BETWEEN

THE QUEEN

and

LAU CHI SING

_______________

Coram: Silke,- J.A., Power & Bewley, JJ.

Date of Hearing: 6th, January 1987

Date of Judgment: 26th February 1987

_______________

JUDGMENT

_______________

Headnote: Dangerous drugs; charge of trafficking s.4; meaning of “export”.

Silke, J.A.

1. Lau Chi Sing - "the Respondent" - was tried before His Honour Judge Wilson for the offence of trafficking in a dangerous drug under section 4 of the Dangerous Drugs Ordinance - "the Ordinance". The Particulars of the offence were that he, on the 20th November 1985, at Lo Wu Immigration Hall, Hong Kong, unlawfully trafficked in a dangerous drugs namely' 192.97 grammes of a mixture containing 22.19 grammes of salts of esters of morphine.

2. When, the trial concluded, the trial judge convicted the Respondent of simple possession and sentenced him to one year's imprisonment.

3. The Attorney General, being dissatisfied with the decision in law of the trial judge, applied to him, under the provisions of section 84 of the District Court Ordinance, to state a case.

4. I would interpolate here that Mr. McCoy, who appeared for the Attorney General before us, has made it clear that he seeks the imposition of no further penalty upon the Respondent. He wishes only to have the question of law determined.

5. The facts as found by the trial judge were that the Respondent was arrested at the Immigration point at Lo Wu on his way to China; that he had with him the quantity of drugs referred to in the Particulars of Charge; that he intended to take the drugs out of Hong Kong to China; that the Respondent satisfied him that the drugs were intended for his own consumption and in China. The trial judge made reference to the presumption-of possession for the purposes of unlawful trafficking contained in section 46 of the Ordinance and found that, presumption to have been rebutted.

6. The issue here is whether a person taking dan8erous drugs out of Hong Kong may, within the definitions contained in the Ordinance, be convicted of trafficking. A subsidiary issue is whether a valid defence, bearing in mind the presumption can be raised to such a charge by an accused's evidence that he had those drugs for his own consumption.

7. Section 2 of the Ordinance defines "export" as meaning:

"to take or cause to be taken out of Hong Kong or any other country, as the case may be, by land, air or water;”

"Trafficking" is defined in the same section as:

"Trafficking, in relation to a dangerous drug, include importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, and traffic in a dangerous drug shall be construed accordingly;"

8. It was the Crown's contention at trial that by virtue of the definition of trafficking to which I have just referred any person taking drugs out of Hong, Kong is exporting them, this regardless of the quantity of the drugs being taken out, and is therefore trafficking. The Crown further submitted that the question of rebuttal of the presumption contained in section 46 is irrelevant, that section having no application to a charge brought under section 4.

9. The trial judge ruled against those submissions as it did not appear to him that the intention of the legislature was that a person entering or leaving Hong Kong with a mere trace of drugs for his own consumption should be guilty of trafficking. He based this finding, in part at least, on the use in the definition of trafficking of the word “includes” as opposed to the word “means" in the definition of export. He considered that by virtue of the word "includes”, the phrase "or otherwise dealing in or with the drug" qualified the preceding portion of the definition. That being so, he felt there must be some intention of "dealing in or with the drug” present in addition to actual possession before that knowing possession becomes trafficking.

10. In consequence he held that the offence of trafficking fell to be decided on ordinary principles and the fact that drugs are being taken out of Hong Kong is but one of the factual circumstances to be taken into account in determining whether a person is or is not trafficking, as is also the quantity of the dangerous drugs. He held the presumption in section 46 to be applicable and capable of being rebutted according to normal principles.

11. The question he posed fop our consideration is as follows:

“Whether I was correct in law in ruling that a person taking drugs out of Hong Kong with him for his own consumption is not trafficking in drugs within the meaning of Sections 2 and 4 of the Dangerous Drugs Ordinance?"

12. It is the main contention of the Crown that the definition of trafficking in section 2 is a general one and is intended to be of wide application; that this is indicated by the phrase “or otherwise dealing in or with" used, not as qualifying words, but as an extension of the terms of the definition. This, read with the definition of “export”, means that any person taking dangerous drugs, of whatever, quantity, out of Hong Kong is exporting them and is therefore trafficking.

13. Mr. McCoy referred us to a number of authorities which, he says, support his contention, also to one Ong Ah Chuan v. Public Prosecutor[1] which, while it may appear to support the contrary; he submits can be easily distinguished.

14. Mrs. Spruce, who appears for the Respondent, does not seek to dispute any of the trial judge's findings of fact. In her concise and helpful submission, she relies on Ong Ah Chuan¹. She makes three points, with reference to section 4, the definitions in section 2 and the presumption contained in section 46 of the Ordinance. On this last, she says that there is nothing in the wording of section 46 to suggest that it can only be used when the charge is one under section 7 of the Ordinance. It is equally applicable to charges under section 4.

15. She submits that the offence here is not one of exporting, for exporting must carry with it the connotation of transfer of possession to another and, on the facts here, the Respondent was retaining possession. Further, trafficking must be given its ordinary meaning as a "dealing in”.

16. She further submits that, if she be wrong on any of those points, the words in the definition preceding the phrase "or otherwise dealing in or with" must be qualified by it and that the phrase imports into the definition an intent to dispose of or to transfer which has not been proven here.

17. In Ong Ah Chuan v. Public Prosecutor¹, and an allied appeal, the Judicial Committee had for consideration the construction of the Singapore Misuse of. Drugs Act 1973. Section 2 provided that:

“In this Act … 'traffic' means … (a) to sell, give, administer, transport, send, deliver or distribute;”. (Emphasize supplied)

18. The appeal turned on the meaning of the word "transport" The Judgment was delivered by Lord Diplock and, at page 665, he noted that the Drugs Act did not create eo nomine an offence of having a controlled drug "in one's possession for the purpose of trafficking therein". He went on:

"If nothing more is proved against an accused than the mere fact that he had the controlled drug in his possession, then an offence under section 6 is established but the graver offence under section 3 of trafficking is not, however large may be the quantity of the controlled drug involved."

19. He went on, at page 666, and this must be viewed in the light, of the passage just quoted:

"To 'traffic' in a controlled drug so as to constitute the offence of trafficking under section 3 involves something more than passive possession or self-administration of the drug; it involves doing or offering to do an overt act of one or other of the kinds specified in paragraph (a) of the definition of 'traffic' and 'trafficking' 'in section 2.”

20. He went on:

"Even apart from any statutory definition, the ordinary meaning of the verb 'to traffic', in the particular context of trafficking in goods of any kind, imports the existence, either in fact or in contemplation, of at least two parties: a supplier and a person to whom the goods are to be supplied. This concept, involving transfer of possession, is reflected in the statutory definition itself. Of the seven verbs used to describe the various kinds of overt acts which constitute trafficking 'transport' is sandwiched between ‘sell, give, administer' which precede it and 'send, deliver or distribute' which follow it. All of these other verbs refer to various ways in which a supplier or distributor who has drugs in his possession, may transfer possession of them to some other person."

21. Holding that the word "transport", in the context of the legislative enactment which lay for the consideration of the Board, attracted the maxim noseitur a soeiis Lord Diplock went on that this, together with the appearance of that word in the definition of "traffic" - traffic bearing the ordinary meaning which he ascribed to it in the passage quoted above, - and that the evident purpose of the Act was to distinguish between dealers in drugs arid addicts, all combined to make it clear that "transport" was not used 'in the Singapore Art in the sensed of mere conveying or carrying or moving from one place to another but in the sense of transporting so as to promote the distribution of the drug to another.

22. He went on at page 667 to conclude that:

" … simply to transport from one place to another a quantity of a controlled drug intended for one's own consumption, if unauthorised by the Act or regulations, involves an offence of having the drug in one's possession under section 6 but does not amount to the offence of trafficking under section 3."

23. I accept Mr. McCoy’s submission that Ong Ah Chuan^l can be distinguished from this instant case. Our definition of “trafficking” starts with reference to importing and exporting, goes on to consider procuring, supplying and then refers to:

"or otherwise dealing in or with the dangerous drug"

24. It is not a case, as in the Singapore legislation, of a word being, as Lord Diplock put it, "sandwiched between verbs" which referred to various ways in,which a supplier or distributor who has drugs may transfer possession of them to some other person.

25. The definition of “export”, combined with the terms of the definition of trafficking as I construe them, extends, in the Hong Kong context, Lord Diplock's "ordinary meaning of the verb to traffic":

26. The view which I have formed of the phase "or otherwise dealing in or with" as being an extension of the terms of the general definition is fortified by Hui Shu Tam and Others v. TheQueen[2]. There it was held that, in relation to dangerous drugs, that phrase

"necessarily involves some kind of commercial transact".

27. The Court was there considering a charge of conspiracy to traffick and Rigby J., (as he then was), said at page 350:

“In our view the various expressions used in section 10 ……"

(a section different in form to the definitions we have for consideration)

" ….. 'buy', 'sell', 'deal in or with', 'import or export' etc. constitute separate and distinct offences and require to be charged as such. The expressions 'deal in' or 'deal with' may overlap, but they are not necessarily the same."

28. He went on to deal with other matters which are not germane to the issue here.

29. In Wong Yin Yu v. The Queen[3], Huggins J. (as he then was), delivering the judgment of the Full Court, adopted the reasoning in Hui Shu Tam² and said at page 13:

"Where the quantity of drugs is large enough (as it clearly is in this case) the jury can assume that it is to be disposed of to others. Such disposal will amount to a 'dealing in' if the possessor is party to a sale or similar transaction but only to 'dealing with' if it (sic) is not. In either event the purpose for which the goods are possessed is 'trafficking’."

30. In contrast to the Singapore legislation, our legislation does contain an offence of possession for the purpose of unlawful trafficking.

31. Mr. McCoy, in further support of his contention that the phrase "or otherwise dealing in or with a dangerous drug" is there for the purpose of permitting to be charged persons who are acting otherwise than importing exporting, procuring or supplying, has referred us to The Queen v. Diu Lap Nin[4] where the Chief Justice, delivering the. judgment of the Court of Appeal said, at page 8:

"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."

32. I accept that this is a. penal statute and that if there be ambiguity then the ambiguity should be resolved in favour of the Respondent. But I do not see any such ambiguity. The heading of Part II of the Dangerous Drugs Ordinance, and we are entitled to look at such headings as a means of construction, reads:

"Control of import, export, procuring, supply, dealing in or with, manufacture and possession of dangerous drugs."

33. In my judgment the verbs referred to in the definition of "trafficking" constitute separate offences. The phrase "otherwise dealing in or with" is not one which qualifies those preceding verbs. Nor do I think this construction to necessarily mean that simple possession amounts to trafficking. We have in our Ordinance a specific offence of simple possession and, if a trial court accepts that a defendant has in his control such quantity of drugs as attracts the presumption that his possession amounts to unlawful trafficking, then that presumption is capable of being rebutted and, if rebutted, lead to a conviction for simple possession.

34. The Ordinance is intended to deal with all offences concerning dangerous drugs. If a person takes or causes to be taken dangerous drugs out of Hong Kong then he is exporting them and it matters not that he intends to use the unlawful substance for his own consumption once he leaves the Territory. It is in my view clear that while quantity may go to mitigation of sentence, it is not a defence to the charge once the knowing possession and the taking out have been proved. The presumption under section 46 is irrelevant.

35. It follows therefore that a conviction for exporting should have been come to in this case but it was open to the trial judge, if he believed that this substantial quantity was in fact 'for the Respondent's own consumption, to reflect that belief in sentencing the offender.

36. In coming to this conclusion, I have not ignored that which was said in The Queen v. Ngai Chi Keung[5] where McMullin, V.-P., delivering the judgment of the Court of Appeal, of which I was a Member, made reference to a submission at trial, accepted by the trial judge, to the effect that, once it was shown that the drugs were in the process of being exported, then inevitably that meant that they were in the possession of the applicant for the purpose of trafficking and described it as “curious".

37. As here, the Applicant had been arrested at Lo Wu on his way to China but the charge there was that of possession of drugs for the purpose of unlawful trafficking - section 7. His defence was that the drugs were for his personal consumption. The nature of the charge, and of the defence brought forward, necessarily involved the consideration of the presumption under section 46. The trial judge ruled against that consideration and we considered that, by refusing so to do he had deprived himself of opportunity of giving proper attention to the nature of the explanation advanced. I do not consider that Ngai Chi Keung⁵ binds us here.

38. I would answer the question posed in the negative.

Power, J.:

39. The background to this application is fully set out in the judgment of Silke, J.A.. The view which I take of the matter can be shortly stated. I am satisfied that the proper approach is that adopted by Lord Diplock in Ong Ah Chuan v. The Public Prosecutor¹. In that case he was dealing with the word "traffic" as used in the Misuse of Drugs Act 1913 of the Republic of Singapore. That Act sets out in s.2 that "traffic’ means … (a) to sell, give, administer, transport, send, deliver or distribute;". Lord Diplock, who delivered the judgment of the Privy Council, said at 666:

"To 'traffic' in a controlled drug so as to constitute the offence of trafficking under section 3 involves something more than passive possession or self-administration of the drug; it involves doing or offering to do an overt act of one or other of the kinds specified in paragraph (a) of the definition of 'traffic' and 'trafficking' in section 2. Even apart from any statutory definition, the ordinary meaning of the verb 'to traffic' in the particular context of trafficking in goods of any kind, imports the existence, either in fact or in contemplation, of at least two parties: a supplier and a person to whom the goods are to be supplied. This concept, involving transfer of possession, is reflected in the statutory definition itself. Of the seven verbs used to describe the various kinds of overt acts which constitute trafficking 'transport' is sandwiched between 'sell, give, administer' which precede it and 'send, deliver or distribute' which follow it. All of these other verbs refer to various ways in which a supplier or distributor, who has drugs in his possession, may transfer possession of them to some other person. 'Transport', although it must involve possession of the drugs by the person who transports them, is the only member of the heptad of verbs that is not inconsistent with the retention of possession of the drugs by him after their transport. It must mean moving the drugs from one place to another; it may mean moving them also to another person but it need not do so. Whether it bears the wider or the narrower meaning depends upon the context in which the verb appears. In their Lordships' view the immediate context of the verb 'transport,' .to which attention has been drawn, attracts the maxim noscitur a sociis. This, and the fact that it appears in the definition of the verb to 'traffic', of which the natural meaning in the context of trafficking in goods involves dealings between two parties at least, and that the evident purpose of the Act is to distinguish between dealers in drugs and the unfortunate addicts who are their victims, all combine to make it clear that 'transport' is not used in the sense of mere conveying or carrying or moving from one place to another but in the sense of doing so to promote the distribution of the drug to another. Supplying or distributing addictive drugs to others is the evil against which section 3 with its draconian penalties is directed.”

40. The definition of' "traffic" in section 2 of the H.K. Dangerous Drugs Ordinance-reads as follows:

“‘trafficking’, in relation to a dangerous drug includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, and 'traffic in a dangerous drug' shall be construed accordingly;".

41. The definition uses the word "includes" and not the word "means” which is used in the Singapore Act. I do not, however, consider there is any significance in the use of one word rather than the other nor did either counsel suggested that this was so. I am satisfied that, in the present case, we must start from the ordinary meaning of the verb "to traffic" as did Lord Diplock. The word imports the existence of a supplier and a person to whom the goods are to be supplied. Such a connotation is implicit in the words "procuring, supplying or otherwise dealing in”. I turn to consider the words “dealing with" the approach which, correctly in my view, has always been adopted in Hong Kong is that a "dealing with” dangerous drugs such as would constitute trafficking must involve an element of disposal (see R. v. Diu Lap-nin C.A. No. 1439 of 1983 and Wong Yiu-yu v. The Queen (1972) H.K.L.R. 6). Considerable difficulties in the interpretation of the words "dealing with" arise, if the approach contended for by the Crown is adopted. The Crown submits that the words “importing" and "exporting" should be given their ordinary meaning so that trafficking applies to any exporting and any importing even such as does not involve an eventual disposal of the goods. If this approach is applied logically and uniformly to the words in the definition then the words "dealing with" must also be given their ordinary meaning, i.e. any dealing with, and the term “trafficking" would then, quite wrongly in my view, cover a simple possession in which there was no element of disposal.

42. I am satisfied for all of the reasons which persuaded Lord Diplock that the words "importing" and "exporting" are not used to describe a mere taking of something out of Hong Kong or bringing of something into Hong Kong but have implicit in them the sense of doing such acts to promote the distribution of dangerous drugs to another person. The anomaly that would arise with regard to the interpretation of the words “dealing with" reinforces me in my belief that the approach I have adopted is the correct one.

43. I am satisfied that the question asked must be answered in the affirmative.

Bewley J.:

44. I am in agreement with the conclusions reached by Silke, J.A. and the reasoning therefore. I too would answer the question asked in the negative.

G.J.X. McCoy, Esq. for Crown/Appellant

Mrs. J. Spruce (D.L.A.) for Respondent

[1]  [1981] A.C. 648 (P.C.)

[2]  [1965] H.K.L.R. 341 (Full Court)

[3]  [1972] H.K.L.R. 6 at p.13

[4]  Criminal Appeal No. 1439 of 1983 (unreported)

[5]  Criminal Appeal No. 32 of 1985 (unreported)