The Queen v. Chan Tat Kwong and Another

CACC000601A/1989

HEADNOTE

The Court held, following Knowlden (1983) 77 Cr. App. R.94, that whereas a co-defendant gives evidence in a cut-throat defence implicating another co-defendant, the simple customary warning will suffice and there will seldom be need for the giving of a full accomplice warning. No complaint could be made of a summing-up which stressed the need for the jury to consider whether the presumption of knowledge had been displaced in circumstance where there was no issue as to custody or control.

BETWEEN

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Coram: Hon. Silke, V.-P., Power & Macdougall, JJ.A.

Date of Hearing: 15 August 1990

Date of Delivery of Judgment: 7 September 1990

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JUDGMENT

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Power, J.A.:

1. CHAN Tat-kwong, the first applicant, and LAM Kwan-wai, the second applicant, were jointly charged with possession of dangerous drugs for the purpose of unlawful trafficking. The charge was particularized as follows:

"CHAN Tat-kwong and LAM Kwan-wai, on or about the 18th day of April, 1989 inside Room 2, Block E, 5th floor, No.2, Tung Chau Street Mongkok, Kowloon, Hong Kong, had in their possession dangerous drugs namely 2,371.90 grammes of a mixture containing 101.61 grammes of salts of esters of morphine and 49.23 grammes of a mixture containing 37.67 grammes of salts of esters of morphine, for the purpose of unlawful trafficking therein."

Both applicants pleaded not guilty before Deputy Judge Saied and a jury and were, after trial, found guilty. Each was sentenced to imprisonment for nine years. The first applicant appeals against his conviction. The second applicant appeals against both conviction and sentence.

2. The facts upon which the Crown relied were that on the 16th of March 1988, a Mr. NG Cheung-ming rented Room 2 of the apartment on the 5th floor of Block E, No.2 Tung Chau Street to the 2nd applicant and her sister. Before the 18th of April, the day of the charge, the sister had moved out of the room. It was not in dispute that the applicant was the tenant of the room and had the keys thereto. Her elder brother lived in another room in the flat for a period but he too had left before 18th April. On 18th April at about 9.20p.m., a police party entered the premises through the unlocked outer grille and door and were let into Room 2 by the 2nd applicant. The dangerous drugs, a kitchen scale and plastic bags were found in a number of caches around the room. The 2nd applicant at the instigation of the police contacted the 1st applicant who said he would come to the room. At about 2.30a.m. on the 19th of April he arrived and opened the iron door and the wooden door with keys. He was intercepted by the police and when asked where he lived, said: "I know what is the matter. I live at Room 2."  The police officers seized four keys from him, one of which opened the knob lock and another the Yale lock of Room 2.

3. In evidence, the 1st applicant denied having had the keys and that he had any knowledge of the drugs. The 2nd applicant also denied having had any knowledge of the drugs.

4. The defences of the applicants were what are usually termed cut-throat defences, each suggesting that the drugs belonged to the other.

5. The 1st applicant made a cautioned statement which contained damaging admissions, but this, after a voir dire, was not admitted by the trial judge. Cross-examination by counsel for the 2nd applicant was, however, permitted thereon.

6. No issue was taken as to the right to cross-examine (See (Liu Mei Lin v. The Queen (1989) A.C. 288).

7. The 1st applicant, represented by Mr. Sedgwick, Q.C. and Mr. Peter Nguyen, appeals on the following grounds:

8. The 2nd applicant, represented by Mr. Christopher Grounds, appeals on the following grounds:

9. Ground 3 urged on behalf of the 1st applicant and Ground 2 urged on behalf of the 2nd applicant can be conveniently dealt with together. It is the submission of both counsel that the circumstances of the case required that the trial judge give a full accomplice warning when dealing with the evidence of each of the accused in so far as it incriminated the other accused.  In Reg. v. YIP Kai-foon [1986] HKLR 1091, this Court held that when dealing with the evidence of a co-defendant a judge is not required to give a full accomplice direction. It was, however, submitted that this was a ruling made without the benefit of argument as the court in its judgment, at 1093, stated:

"Counsel for the applicant very fairly conceded that according to his research there was no authority requiring a judge, in dealing with the evidence of a co-defendant, to give a full accomplice direction. There is certainly some material difference between the evidence of an accomplice and the evidence of a co-defendant insofar as it affects the judge's direction to the jury we are of the opinion that there is no merit in the first ground."

10. Mr. Sedgwick submitted that this concession by counsel was not correct as, in his submission, Chan Siu-hung & Others v. The Queen [1976] HKLR 357 had dealt with this matter and had indicated that, at least in circumstances such as those existing in the present case, the judge was called upon to give a full accomplice warning.

11. The direction given in Chan Siu-hung's case was:

"If the evidence against an accused person is only that of an accomplice, a person who admits himself to be an accomplice, it would be dangerous to convict a person on that evidence alone. You could do it if you find it very convincing but there is a danger in doing that. You may, however, feel that in this case there is plenty of other evidence against the individual accused. That is a matter for you.  I am simply telling you of the danger that exists in convicting an accused person on the uncorroborated, unsupported evidence of a person who admits or claims to be an accomplice of that accused."

12. On appeal, McMullin J., who delivered the judgment of the court, said at p.361:

"Mr. Sedgwick, who appears on behalf of the 1st defendant only, concedes that, on the authority of a whole line of cases commencing with R. v. Barnes & Richards (1940) 27 Cr.App.R. 154 and most recently emphasized in R. v. Russell (1968) 52 Cr.App.R. 147 that (sic) there is no rule of law that the jury must be warned in terms of the need for corroborative evidence when a defendant gives evidence which implicates a co-defendant."

The learned judge went on to say at 363:

"Had the learned judge never referred to the need for corroboration at all we think that counsel would have found it difficult to argue that the warning given was insufficient."

The two directions in the instant case which Mr. Sedgwick suggests triggered the need for a full accomplice warning of the kind referred to by McMullin J. in Chan Siu-hung's case as "the full treatment" are as follows:

"Now, members of the jury, it is obvious, is it not, that each alleges possession and ownership of the dangerous drugs found in the room in the other. In the state of their evidence, each having some purpose of his own to serve, which obviously was to distance himself or herself from those drugs found inside Room 2, it becomes absolutely necessary that you consider their testimony with great caution. The Crown's case is, thus, based entirely on the presumptions which I have mentioned."

and later:

"As I pointed out earlier during the trial when this statement was made available to you, its only relevance is to test the credibility of the evidence which the maker of the statement, that is the 1st defendant, has now given in court implicating the 2nd defendant. I will also remind you that the maker of this statement may well have a motive for incriminating his co-defendant and that his evidence should be approached with extreme caution."

13. The trial judge was here doing no more than reminding the jury of a matter of the plainest common sense, which they would no doubt have had in mind anyway, that, when assessing the evidence of a person who has an interest in exculpating himself by inculpating another, his evidence should be examined with great care.  We are quite satisfied that he did not proceed to the point where, in accordance with the approach in Chan Siu-hung's case, it would have been necessary for him to embark upon "the full treatment". We do not feel it desirable to canvass the decision in Chan Siu-hung further than to, say that it has no application to the circumstances of the present case.

14. The proper approach is, in our respectful view, correctly stated in the following two cases: Chan Siu-shing [1974] HKLR 493 where Huggins J., at 505, said:

"Therefore the true position is that where a defendant gives evidence unfavourable to his co-defendant, the judge has a discretion whether or not to give the usual warning, just as he has where the accomplice called by the prosecution gives evidence which is wholly favourable to the defence or where it is partly favourable and partly unfavourable. In the present case the judge was under no duty to give a warning."

and Knowlden (1983) 77 Cr. App. R.94 where Watkins L.J. said at 100:

"In exercising his discretion, he is at the least to be expected to give the customary clear warning to a jury where defendants have given damaging evidence against one another to examine the evidence of each with care because each has or may have an interest of his own to serve. Whether he should also advise the jury to look for corroboration of the evidence of a co-defendant and specify what evidence may or may not be corroboration will be decided by him, having regard to the nature and severity of the attack made by one co-defendant on another. The need for this advice should rarely arise in our experience since the simple customary warning will suffice to ensure that the jury regards the evidence in question with proper and adequate caution. The content of whatever kind of warning or advice is given is best formulated by the trial judge and, although invited to, we decline to introduce through this judgment a formula which trial judges should use no matter what circumstances confront them."

We are satisfied that there is nothing in this ground of appeal.

15. We turn to Grounds 1 and 2 of the 1st applicant. The two passages of which complaint is made are those to which we have already referred. Mr. Sedgwick agrees that no objection could be taken to the trial judge cautioning the jury that, when considering the evidence of a defendant which implicated a co-defendant, it must, before using the evidence against the co-defendant, examine it with great care. His complaint is that the judge failed to make it clear that this caution applied only to the evidence in so far as it was being considered as evidence against the co-defendant and failed to indicate that no such stricture applied to the evidence of the defendant given in his own defence. In the first passage the judge indicated that the evidence to which he was referring was the evidence of each defendant which "alleges possession and ownership of the dangerous drugs found in the room in the other".  He was clearly referring to this evidence when he told the jury that

"it becomes absolutely necessary that you consider their testimony with great caution."

We are satisfied that the jury can have been left in no doubt that what they were being told was that, where an accused implicates another person in an attempt to exonerate himself, his evidence against that person must be looked at with great care.  We find nothing objectionable in this first passage.

16. In the second passage he was reminding the jury of what he had already said, that is that the 1st applicant, "the maker of the statement", may have had a motive for incriminating the 2nd applicant and that the evidence which did so must be approached with extreme caution. Again we do not consider that the jury could have been left in any doubt that the trial judge was giving them a direction as to the evidence that might be used against the other accused. The position was, we are satisfied, put beyond any doubt by a later passage in the summing-up where the judge said:

"What I said earlier about the need for extreme caution in considering the evidence of a witness who has a motive for incriminating a co-defendant applies just as well to a witness who may have some purpose of his own to serve, as I have said. In such circumstances, of course there is a need for extreme caution in considering such evidence."

There is, for the reasons set out above, nothing in these first two grounds.

17. We turn to Ground 1 of the 2nd applicant.

18. Mr. Grounds first referred to the Dangerous Drugs Ordinance and pointed out that the term "possession" is nowhere defined therein. He referred to:

19. He emphasised that the presumption only arises if the person is proved to have had the thing, keys or places referred to "in his possession or custody or under his control", and that the presumption which arises is one of "possession".   He referred then to s.47(2), which, when dealing with the presumption which arises from the possession of documents, uses different terms, i.e. "possession or under his control or subject to his order", but which, he pointed out, gives rise to exactly the same presumption, i.e. one of  "possession".

20. It was in this context that he complained of three passages in the summing-up. The first two are underlined in the following extract from the summing-up.

"This offence has four ingredients which have to be proved by the prosecution against each defendant and these are:

The first is that the substance in issue was the drug charged. In this case there is no problem about that. There is evidence which was not challenged or disputed which establishes that the substances found inside room 2 were the drugs charged. So this first ingredient should cause you no difficulty.

The second is that the defendants had the drug alleged in the indictment in their possession in the sense that they had custody or control of it.

The third ingredient is that the defendants had knowledge that the substance was a dangerous drug.

The fourth is that the possession was for the purpose of unlawful trafficking. And it follows as a matter of course if the other three ingredients are established. I do not think that there is any dispute on this, because there is a presumption that any person in charge of drugs of such quantities as in this case had them for trafficking.

Trafficking means simply to supply to someone else or to deal with in some way.

You are entitled to have regard to the realities of life and in the absence of any explanation to assume that a person who has possession of such large quantities of drugs does not intend to use them for his own consumption or, as has been said on one occasion, as a museum piece.

I will now deal with the presumptions to which reference has been made. The law has laid down certain presumptions in respect of such charges and are to the effect that if certain facts are proved by the prosecution beyond reasonable doubt, then other presumptions or inference that assist the Crown arise from those primary facts. These presumptions are really inferences which the law says arise on proof of certain facts.

I will tell you now what the presumptions against each defendant in respect of each ingredient of the offence are that have to be proved.

The first ingredient, as I said, is that the substance in issue was the drug charged. This, of course, relates to both defendants. As I said earlier, there is no dispute on this issue and you can take it as proved that the substance found in room 2 is of the quantity and nature as described in detail in the Government Chemist's Certificate which you have before you.

The second ingredient, as I pointed out, is that both defendants possessed the drugs charged in the sense of having custody or control of it. If you find it proved beyond any reasonable doubt that the 1st defendant was in possession of the keys to the main entrance of the unit and to the door of room 2, then it is proved, that is, it is inferred, that he was in possession of the drugs found inside the room.

With regard to D2, the 2nd defendant, she being admittedly the tenant of that room and thus in actual possession and control of it, having its keys also, a similar presumption like that against the 1st defendant arises against her also, that she was in possession in the sense of having custody or control of the drugs found in her room.

The third ingredient which I mentioned is that it has to be proved that both defendants knew the substance was a dangerous drug. If you find it proved beyond reasonable doubt that they were in possession in the sense of having custody or control of the drugs, then a further presumption arises that both of them knew it was such a drug.

So, in brief terms, one presumption springs from the other. If it is proved beyond reasonable doubt that both of them were in control of room 2 in the sense that D1 had the keys to it and D2 also having keys and being the tenant in occupation of it, then the presumption arises that both were also in possession of the drugs. And if it is proved that they were in possession of the drugs, it is presumed that they both knew it was such a drug. So one presumption springs from the other. And the law says that such presumptions are not rebutted by proof that the defendant never had physical possession of the drugs.

The fourth ingredient is that the purpose of the possession was for trafficking. I have already dealt with that and I need not go into it any further."

We deal firstly with these two passages. Attack is directed at the judge's use of the words "possession in the sense of having custody or control".

21. Mr. Grounds submitted that they must have confused and misled the jury.

22. In Warner v. Metropolitan Police Commissioner (1968) 52 Cr.App.R. 373 the observations of Lord Wilberforce, at p.435, have application to the situation before us:

"The question, to which an answer is required, and in the end a jury must answer it, is whether in the circumstances the accused should be held to have possession of the substance, rather than mere control. In order to decide between these two, the jury should, in my opinion, be invited to consider all the circumstances - to use again the words of Pollock & Wright, Possession in the Common law, p.119 - the 'Modes or events by which the custody commences and the legal incident in which it is held. By these I mean, relating them to typical situations, that they must consider the manner and circumstances in which the substance, or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it; his legal relation to the substance or package (including his right of access to it). On such matters as these (not exhaustively stated) they must make the decision whether, in addition to physical control, he has or ought to have imputed to him the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance. If he has this intention or knowledge, it is not additionally necessary that he should know the nature of the substance." (Our emphasis.)

23. The present situation, in so far as the 2nd applicant is concerned, is one often encountered in the prosecution of drug offences. The 2nd applicant made no issue of having control or custody of the premises and containers in which the drugs were found but denied any knowledge of the existence of the drugs. The issue then is, in the words of Lord Wilberforce, "whether, in addition to physical control, he has, or ought to have imputed to him the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance".

24. The presumption as to possession which arises by virtue of s.47(1) of the Dangerous Drugs Ordinance is, of course, a presumption both as to physical control or custody of the drugs and knowledge of their existence. It is possession as described by Lord Diplock in D.P.P. v. Brooks [1974] A.C. 862 at p.866 in the following terms:

"In the ordinary use of the word 'possession', one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control."

25. In the passage set out above the judge, when speaking of possession "in the sense of having custody or control", dealt with the 2nd applicant's physical control of the drugs - as to which there was no real issue - and then went on to deal with the question of knowledge - a matter which was in issue.

26. What was essential was that the judge tell the jury that, if it was established on the balance of probabilities that the 2nd applicant had no knowledge of the dangerous drugs, then they must find that the presumption has been rebutted and acquit her.

27. Early in his summing-up, the judge listed the "four ingredients which have to be proved by the prosecution against each defendant":

He then told the jury:

He then said:

"If you find on the evidence that the presumptions which I have mentioned arise, then you will have to consider whether the contrary has been proved, i.e. whether those presumptions had been rebutted. It is for you to decide whether the contrary has been proved. You must understand clearly that the burden of proof required in this regard to rebut those presumptions is less than that which is on the prosecution. And the defence will have proved a fact by any evidence given by a defendant or by relying upon such evidence contained within the prosecution case as was favourable to the defendant, if you conclude that it is more probable than not that the fact existed. That is the expression used by Mr. Hingorani, "more probable than not" which is another way of saying that rebuttal of presumptions is to be considered on the balance of probabilities."

The jury can have been in no doubt that if the applicant established on the balance of probabilities that she did not have knowledge of the existence of the drugs, then the offence had not been established. This being so there was, we are satisfied, nothing which required him to launch into an explanation as to the niceties of possession.

28. We are satisfied that the essential issue of knowledge was put in clear terms to the jury and that they could have been in no doubt that this was the matter for their resolution.

29. The last passage of which complaint is made reads as follows:

"On this issue, Mr. Hingorani mentioned knowledge. He went on to explain how you should look at the evidence. What I am going to say to you is this. It has been said that knowledge might be inferred from evidence that the accused wilfully shut her eyes to facts from which ordinary men would realize that the drugs were there in the room, but the inference is a process of reasoning based on the circumstances of the case and not a presumption of law. In deciding whether the 1st (sic) defendant has shown that she did not possess the drugs, you may consider whether or not she has deliberately turned a blind eye and that you might take this factor into account in deciding if this defendant has shown that she had no knowledge of the presence of the drugs in the room.

I see a quizzical look. I will read that again. In deciding whether the 1st defendant has shown that she did not possess the drugs, you may consider whether or not she has deliberately turned a blind eye and that you might take this factor into account in deciding if she has shown that she had no knowledge of the presence of the drugs in the room. If I may suggest, members of the jury, that approach is a matter of common sense.

Sorry, I seem to have made a mistake. Did I mention the 2nd defendant?

Mr. Hingorani:

My Lord, your Lordship mentioned the 1st defendant, but I think in the context the jury probably understood it was the 2nd.

Court:

Sorry, it was my mistake. I think I will put that right. I will read that for the third time.

In deciding whether the 2nd defendant has shown that she did not possess the drugs, you may consider whether or not she has deliberately turned a blind eye, and you might take this factor into account in deciding if this defendant has shown that she had no knowledge of the presence of the drugs in the room. If I may suggest, members of the jury, that approach is a matter of common sense.

You will recall that I mentioned to you what is meant by trafficking, that it means simply to supply someone else or to deal with, in some way, with dangerous drugs. The judicial interpretation which has been placed on the phrase 'dealing with dangerous drugs' is that it is sufficient to cover any activity which can be said to be related to, or connected with, the dangerous drugs, including storage for subsequent disposal. If you consider, and it is a matter for you, that on the facts and circumstances of this case, in deliberately turning a blind eye, you can infer knowledge on her part of the presence of the dangerous drugs in her room, then it is accepted that any defendant who knows, as D2 is presumed to have chown, of the presence in the premises, of which she was the tenant and occupant, of a huge quantity of dangerous drugs, she must have realized that her premises were being used to store drugs which were destined for sale and distribution in the Hong Kong market, thus assisting to the trafficking of them." (emphasis supplied)

30. No complaint is made as to the propriety of the direction as to wilful blindness. What Mr. Grounds says is that, the trial judge having failed to explain the meaning of possession to the jury, this passage could only have confused them further when considering whether the applicant had rebutted the presumptions.

31. We acknowledge that the passage emphasized above could have been more happily expressed. It must, however, be seen in the context of the summing-up as a whole. Immediately before this passage the judge had detailed the evidence of the 2nd applicant when she denied any prior knowledge of the existence of dangerous drugs in her room. He said:

"She maintained that nothing aroused her suspicion. When she did feel suspicious, she was obviously satisfied with the explanation given by the 1st defendant as, for example, with regard to the kitchen scale and the request for the cosmetic bag in which, at some time, she found bank notes rather than small change, and with regard to bringing into her room wrapped packets of the size of a foolscap sheet, taking them out later, all by way of rendering assistance to his father in the decoration business.

So, she says, because of these explanations, her fears were allayed, put to rest."

32. In the opening paragraph of the passage complained of the judge was simply telling the jury that when assessing the 2nd applicant's testimony for the purpose of deciding whether she had "shown that she did not possess the drugs", that is whether she had rebutted the presumption on the balance of probabilities, they were entitled to consider whether or not she had deliberately turned a blind eye to what was in the room. The judge was doing no more than indicating this as a factor to which the jury could give consideration when considering her credit.

33. The concluding long sentence of this entire passage follows upon observations of the judge as to the meaning of trafficking. The words "if you consider, and it is a matter for you, that on the facts. and: circumstances of this case, in deliberately turning a blind (eye), you can infer knowledge on her part of the presence of the dangerous drugs in her room, ........",  must be read in the light of the direction which he had earlier given regarding the drawing of an inference of knowledge from wilful blindness. He had made it clear that such knowledge might be inferred "from evidence that the accused wilfully shut her eyes tofacts from which ordinary men would realize that the drugs were there in the room". He was going further in this passage than he had gone earlier when he had told the jury that they could use the evidence of wilful blindness when assessing the credit of the 2nd applicant. Here he was saying that the evidence of wilful blindness could be used for the purpose of proving actual knowledge. This was a proper direction given that the judge had at the outset made it plain to the jury that:

"The determination of facts from the evidence that has been adduced is for you, and you do no more than employ the common sense which you use in your daily affairs as men and women of the world. Conclusions from those facts as found by you are inferences which you deduce by your process of reasoning. In reaching your decision, you apply your conclusions of the facts to the law upon which I shall direct you presently."

and that:

"Now that burden or obligation on the prosecution to prove the case remains on the prosecution throughout the case. It is not enough that the prosecution merely establish that there is a very suspicious situation involving the accused or that they are probably guilty.

Before you are entitled to convict, the prosecution must have proved the guilt of each defendant beyond any reasonable doubt."

34. We acknowledge that emphasized passage was inelegantly expressed and might well have been better put, but we are satisfied that the jury were left in no doubt as to the issue which they had to resolve. Indeed had it been necessary to do so we would have had no hesitation in applying the proviso.

35. Both applications for leave to appeal against conviction are dismissed.

Representation:

Mr. I.G. Cross, Q.C. & Mr. Cheung Wai-sun (Crown Prosecutor) for the Respondent.

Mr. A.W. Sedgwick, Q.C. & Mr. Peter Nguyen (Messrs. Ng & Shum) for 1st Applicant.

Mr. Christopher Grounds (Messrs. Tang, Wong & Cheung) for 2nd Applicant.