HKSAR v. Lam Wai Lun

CACC000011/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 11
(Criminal)

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Coram: Hon. Mortimer, V.-P., Mayo and Leong, JJ.A. in Court

Date of hearing: 17 July 1998

Date of delivery of judgment: 17 July 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant seeks leave to appeal against his conviction for trafficking in a large quantity of dangerous drugs, namely 3.97 kilogrammes of a mixture containing 1.45 kilogrammes of heroin hydrochloride. He was convicted after a trial before Mrs Bokhary, J. and a jury.

2. The facts were straight forward. Police officers on Special Squad Duty on 19th March 1997 at Fuk Lo Chuen Road saw a man carrying a bag get out of a car and then board a taxi. The officers who were in a vehicle followed the taxi. The man alighted from the taxi with the bag and was intercepted by the police officers. They inspected the bag which contained the dangerous drugs which are referred to in the charge. According to the officers the man did not say anything when the dangerous drugs were found. This man was the Applicant.

3. At the trial the prosecution placed reliance upon the presumption that anyone proved to have dangerous drugs in their physical possession shall be presumed to have knowledge that the dangerous drugs are dangerous drugs until the contrary is proved.

4. The Applicant did go into the witness box and give evidence. The explanation he gave for being in physical possession of the dangerous drugs was that his friend Mr. LEE Wai-kong had asked him to carry the bag and meet him at the Sik Wai Sin Restaurant to which he was proceeding at the time when he was intercepted by the police officers. He claimed that he had no idea that there were dangerous drugs in the bag. He thought that it contained decoration material samples and decoration tools. He also said that he told the officers this at the time of his arrest.

5. The Judge rightly directed the jury that the main issue that they had to determine was whether the Applicant had knowledge of the contents of the bag.

6. The 1st Ground of Appeal is that the directions given by the Judge were fundamentally unbalanced and in effect amounted to a wrongful direction that the jury should find the Applicant guilty.

7. The 1st particular in support of this related to the direction given concerning the presumption. Complaint is made that when the Judge was explaining the presumption to the jury she made it appear that the Applicant had a significant hurdle to surmount in convincing the jury that he did not know that there were dangerous drugs in the bag.

8. In particular exception is taken to the passage appearing at p. 7 of the summing-up:

"The prosecution's case is that those dangerous drugs, the retail value of which was agreed to be about HK$1.37 million, were for drug-dealing, and that the accused was a courier, in other words, that he was knowingly transporting them in the course of a drug-dealing operation.

Members of the jury, you are entitled to take the evidence as to the dangerous drugs' value into account when considering the nature of the operation which was being undertaken by those concerned with the drugs. And you are entitled to ask yourself whether it is reasonable to think that any owner of dangerous drugs to such value might entrust the same to an innocent dupe rather than to a courier of the drugs who was fully aware of what he was doing and knew all the precautions to be taken.

It is of course no part of the prosecution's case that the only person involved in trafficking in this extremely large and valuable lot of dangerous drugs was the accused. Whoever else may or may not have been involved is not the question for you. The question for you is whether this accused was so involved, whoever else may or may not have been."

9. There was a further similar reference at p. 11:

"You are entitled to take the evidence as to the dangerous drugs' value into account when considering the nature of the operation which was being undertaken by those concerned with the drugs. And you are entitled to ask yourself whether it is reasonable to think that any owner of dangerous drugs to such value might entrust the same to an innocent dupe rather than to a courier of the drugs who was fully aware of what he was doing and knew all the precautions to be taken.

It is of course no part of the prosecution's case that the only person involved in trafficking in this extremely large and valuable lot of dangerous drugs was the accused. Who else may or may not have been involved is not the question for you. The question for you is whether this accused was so involved, whoever else may or may not have been."

10. Mr. Grounds for the Applicant submitted that these passages particularly if they were taken in conjunction with the direction that they must use their common sense effectively meant that the Judge was wrongly directing the jury to convict the Applicant. Another matter he referred to was the way which the Judge repeated the matters which were unfavourable to the Applicant. To an extent it was inevitable that there should be some repetition having regard to the nature of the case. However this fell far short of what was described as advocacy in the R. v. Wood [1996] Cr. App. R. 207.

11. We do not think that the summing-up was fundamentally unbalanced. The prosecution's case was an overwhelmingly strong one. The Judge was correct in stating that the critical issue for determination was whether or not the Applicant had knowledge of the dangerous drugs. Closely allied to this was his evidence to the effect that immediately on his arrest he informed the officers that he was carrying the bag for his friend. This had to be balanced by the evidence of the officers who denied that he said any such thing.

12. It is true that the main issues in this trial came within a very narrow compass. The Judge did however make it sufficiently clear that they would themselves have to decide whether the Applicant had the necessary knowledge.

13. We are satisfied that this conviction is in no way unsafe or unsatisfactory and the application is dismissed.

Representation:

Mr. Arthur Luk, D.D.P.P. & Miss Rosaline Leung (D.P.P.) for Respondent

Mr. Christopher Grounds instructed by M/S Miller & Peart for Applicant