R. v. Ip Kwong Wing

CACC000560/1994

IN THE COURT OF APPEAL

1994, No.560
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Keith, J.

Date of hearing: 7 November 1995

Date of judgment: 7 November 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced one count of trafficking in a dangerous drug. He was charged that he, together with Ip Shu-tak ("the 2nd accused") and Wong Chun-kit ("the 3rd accused") on 20th November 1993, inside No.11, Wooden House, Ping Yeung Right Side, Wo Keng Shan Ha Village, Ta Kwu Ling in the New Territories unlawfully trafficked in a dangerous drug, namely 4,013.92 grammes of a mixture containing 1,279.94 grammes of salts of esters of morphine. He was found guilty after trial before Deputy Judge Beeson and a jury and was sentenced to imprisonment for 21 years. He new seeks leave to appeal against both conviction and sentence. The 2nd accused pleaded guilty at the outset and the 3rd accused was found to have no case to answer.

2. The Crown case was a relatively simple one as regards the facts. On 20th November, police officers were keeping observation on the hut mentioned in the charge. Shortly before 2:30 a sergeant, two PCs and a WPC gained entry into the premises. Inside the hut they found the 3rd accused and a child and, according to the police evidence which was contested, the applicant and the 2nd accused were found in another room standing beside a table on which was a quantity of dangerous drugs.

3. The defence evidence, which came from the applicant's wife, was that he was not found in that position.

4. On the applicant were found keys to a motor vehicle in which, when it was searched, were found to contain the keys to the hut. The keys to the hut were found on the 2nd accused and the fingerprints of the applicant were found on a scale tray and a plastic bag.

5. The case turned upon whether or not the applicant was proved to have been in possession of the dangerous drugs, the quantify of which gave rise inevitably to an inference that they were being stored in the hut for the purpose of trafficking. The trial judge recognized this at the very outset of her summing-up when she said:

"The Crown has put it on the basis that he was effectively in possession of this dangerous drug and that because of that, in particular because of the very large quantity of it, he must have been in possession of it for the purpose of trafficking."

She came back to that matter when she referred to the address of Crown Counsel saying:

"You have been asked by Mr. Yau to draw the inference that from his position and from imputed knowledge of the drug that this defendant was in possession of them and that he was in possession of them for trafficking."

There was no doubt that possession was the real issue.

6. It was, we are satisfied, essential to direct the jury as to the meaning of that term and to assist the jury with regard to the evidence relevant to that issue. It must be borne in mind that there were two men in the hut and that, it seems to have been common ground, the hut belonged to the 2nd defendant.

7. It is the submission of Mr. Spicer, who appears today for the applicant, that the trial judge never defined the term "possession" and that this was a fatal flaw in the summing-up. The trial judge did, although not at the outset of the summing-up, say:

"Now, it is particularly importantly as you are being asked to infer that this defendant was in possession of the drugs because he was physically present with the drugs, in a position where he was able to see them, and that he might have had knowledge of what the contents of the packets were, he might have known they were drugs. The Crown is asking you to infer that he did have custody or that he had control over those drugs sufficient so that you can be satisfied he was trafficking in them, that he was possessing them for trafficking."

This statement did not, however, define the term "possession" as to which they had to be satisfied before they could convict. The statement was made in the context of what the Crown was seeking to prove, not what the Crown had to prove. The judge returned again to this matter when she said later in her summing-up:

"If he was standing in front of the drugs, what inference can you draw from his being there? Was he just an interested spectator, or is it more likely that he was there because there was some dealing in the drugs taking place, or because he was in some position to exercise control over them? Those are all matters that you have to take into account when you are considering the matters but only after you have considered the question of the evidence in relation to the raid."

Had possession already been defined these observations would no doubt have assisted the jury but that had not been done. Nowhere in the summing-up did the judge define possession telling the jury in simple terms that before the defendant could be found guilty the Crown had to prove beyond reasonable doubt that he had knowledge that there were drugs in the hut and that he had either physical custody of the drugs or that they were under his control and, less importantly, that such custody or control could be exercised jointly with the 2nd accused. This was, as Mr. Spicer has argued, a fatal flaw in the summing-up.

8. The application for leave to appeal against conviction will be treated as the hearing of the appeal and the appeal will be allowed.

Representation:

Mr. John Reading, S.A.C.P. (Crown Prosecutor) for the Respondent

Mr. Rupert Spicer instructed by Messrs. Paul Kwong & Co. for the Applicant.