Lam Wo Ching v. The Queen
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CACC000605/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 605 OF 1973 -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 18th December 1973. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Applicant was indicted on two counts of possession of dangerous drugs for the purpose of unlawful trafficking. She was convicted on both counts and now seeks leave to appeal against her convictions. 2. The evidence called on behalf of the prosecutions was never in dispute. The police were keeping watch in Man Wan Road, Kowloon. They saw the Applicant go to the boot of a car. She then entered another car and drove off. She was intercepted and brought back to the first car. Inside the boot a large quantity of dangerous drugs was found. Her handbag was searched and two packets of dangerous drugs were found in it. When charged by the police jointly with her husband, who was not prosecuted, she said:
The defence was that on the day before the alleged offence a friend she had not seen for about a year happened to meet her in the street and asked her if he might leave with her for two or three days two paper carrier bags of what he said were medicine: it was agreed that they be put in the boot of a car of which the Applicant had the use, but which had been out of order for some days: later the friend telephoned and it was agreed that two further parcels of medicine should be put with the others: the Applicant's amah was given the key of the boot and subsequently reported that the friend had put two bags, which he said contained Chinese medicine, into the boot of the car. She said that on the day of the alleged offence the friend telephoned and said he would like to get some of his things: after some discussion he asked her to do him the favour of taking two packets of Western medicine from one of the parcels and meeting him at a designated place when she was on her way to the restaurant in which she had a business interest. She did what she was asked and was arrested as she was on the way. 3. The two issues of substance which the jury had to decide were (1) whether the Applicant was in possession of the dangerous drugs described in each count, and (2) whether, if she was in possession of those drugs, she was in possession of them for the purpose of unlawful trafficking. To enable them to decide the first of these issues it would seem to have been necessary that the jury be told what "possession" meant. The learned judge directed them thus:
and he went on to give them an example which distinguished possession from ownership. Nothing turns upon his insertion of the word "necessarily", although it may be observed that possession is, under this Ordinance, never the same thing as ownership. However, this brings us to the crux of the present case. What is contended is that the definition given by the learned judge was wrong because it included no mental element. 4. It has to be borne in mind that "possession" does not mean the same thing in every context. The classic definition of possession at Common Law requires not merely custody with knowledge but also an intent to exercise the powers of an owner in case of need. It was pointed out in Reg. v. CHAN Sum (1956) 40 H.K.L.R. 55 and Reg. v. WU Him-fong 1968 H.K.L.R. 685 that possession in the Dangerous Drugs Ordinance amounted to custody with knowledge of the presence of the goods and that it was not displaced by showing that someone else had constructive possession: a full animus possidendi did not have to be shown. When the learned judge in the present case gave his definition of possession it is true that he omitted any reference to a mental element and we do not think that counsel for the Crown has seriously contended before us that this definition was sufficient. Clearly it was not. However, counsel sought to uphold the conviction in two ways. First he contended that the passage cited was not the whole of the learned judge's definition of possession and that as elsewhere in his summing-up the learned judge referred to a mental element there was no misdirection. Alternatively counsel submitted that if there was a misdirection no substantial miscarriage of justice resulted therefrom. The argument goes like this. By referring to s.47(3) of the Dangerous Drugs Ordinance (which raises a presumption as to knowledge of the nature of a dangerous drug) the learned judge implicitly directed the jury that they had to be satisfied that this Applicant knew the nature of the drugs in the boot of the car and in her handbag. Moreover, it is said, the learned judge read s.47(1) (which raises a presumption of possession where a person is proved to have had a container or the key to a container of dangerous drugs in his possession or custody or under his control) and that the jury must have appreciated that the distinction there drawn between possession and custody and control could only be on the basis that possession involved another element. He went on to say that they must have understood that the additional element was knowledge of the nature of the goods because they were told that the defence was absence of knowledge. That attributes to the jury a degree of comprehension which we think is beyond that of the average juror. Nevertheless it is true that the burden of the summing-up was to the effect that for some reason (which we think the jury may not have entirely understood) the prosecution had to prove that the Applicant knew the nature of the drugs, that such knowledge was presumed upon proof of custody or control of the handbag and of the key of the car boot (which was never in dispute) and that it was then for the Applicant to show that she did not know what the drugs were. At the end of his charge the learned judge said:
The verdict, therefore, indicates that the jury were not persuaded that the Applicant did not know what was in the packages. For my part I think the better view is that there was a misdirection but be that as it may we think it was made sufficiently clear to the jury that unless they were satisfied that the Applicant knew what was in the packages they should not convict and that the misdirection (if any) resulted in no miscarriage of justice. 5. The Applicant was not charged with trafficking but with possession for the purpose of unlawful trafficking. Once it is acknowledged that the Applicant was in possession of these drugs the Ordinance by reason of the quantity of them raised a further presumption that her possession was for the purpose of unlawful trafficking. Although in places the charge might have been more happily phrased the learned judge gave a proper direction as to the meaning of trafficking and we can see no substantial cause for complaint in the rest of what he said. In leaving to the jury the possible verdict of simple possession the learned judge was unduly favourable to the Applicant. No one had suggested that such a verdict was open and it is inconceivable that if the Applicant was in possession she could have any purpose other than trafficking. Even had such a verdict been reasonably open, the manner in which the clerk put the question to the jury was strictly in accordance with the normal practice. 6. The application must be dismissed. 18th December 1973. Representation: |