Cheung Fuk-ki v. The Queen

CACC000628/1982

Conviction:

Possession of dangerous drugs for the purpose of unlawful trafficking - no specific reference to presumption of Section 46 of Dangerous Drugs Ordinance - clear direction as to requirement of guilty knowledge before jury could convict - use of the term to convince for rebutting the presumption in Section 46 and Section 47 and to direct jury that it was their duty to suppress and punish crimes was too strong and wrong - however, in view of the strong and the otherwise clear direction as to guilty knowledge such misdirections were immaterial - application for leave to appeal against conviction refused.

Sentence:

The co-accused was the master mind even though much younger - received a sentence of 6 years - applicant received 12 years sense of grievance - the sentence was at the highest scale in similar cases - application for leave to appeal against sentence granted. Sentence of 12 years reduced to one of 9 years.

BETWEEN

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 9 December 1982

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JUDGMENT

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Li, J.A.:

1. At the end of counsel's address in this appeal, we refused the applicant leave to appeal against conviction but granted him leave to appeal against sentence, we allowed that appeal and varied the sentence from 12 years imprisonment to one of 9 years. We indicated that we would give our reasons later which we now do.

2. The applicant was convicted of the offence of possession of. dangerous drugs for the purpose of unlawful trafficking. It was alleged that on the 19th of November, 1981, he had in his possession 4,611.15 grammes of mixture containing 1,340 grammes of salts of esters of morphine.

3. The Crown's evidence was that at about 5 minutes past seven in the morning on that date, a police patrol vehicle carrying several constables and a sergeant was driving along Yam Chan Street in a westerly direction. They observed a motor-bicycle travelling on the opposite direction of the street going along a bus only lane. They did a U-turn at a convenient junction to chase after this motorcycle because they observed that the driver was committing a traffic offence. They observed at the same time that the applicant and his co-accused, a girl, were on the bicycle. The applicant as the driver and the Girl was the pillion seat rider. In between them was a big bag. The girl ins hanging on to the applicant from the backseat. The bag was placed between the back of the applicant anal the front of this girl on the bicycle.

4. Following the applicant's motor-cycle, they observed that the applicant increased speed. They sounded the siren to indicate that the applicant should stop. However, the motor-cycle went against three sets of traffic lights and did a right turn at a "no right turn" junction into Laichikok Load where it colided with a taxi. Both the applicant and the girl fell.

5. As soon as they picked themselves up, the girl snatched the plastic bag and started to run away. She was chased and subsequently caught after she had thrown the bag on the ground. When she was caught and the constable was about to retrieve the bag, she at once said that the bag did not belong to her.

6. The applicant had his foot caught underneath the motor-cycle. He got up a bit slower. When he was about to run, the police caught up with him.  The bag was opened. It was found that it contained the drugs alleged in the charge. Upon caution, the applicant said nothing.  When interviewed, he denied any knowledge of the drags. That was the gist of the Crown's evidence.

7. The defence of the applicant was that in the afternoon, the day before, he asked the girl, who was his girl friend, to have dinner at his home. The girl said that she had to deliver a bag to the Shatin Railway Station to a person the next morning. As the applicant had a motor-cycle, he agrees to take her there. The girl slept the night in the applicant's home at Shek Tong Tsui. Next morning, the 19th, they made their way from Shek Tong Tsui to Shatin. The applicant lost his way and, going along Shamshuipo, he went into the bus only" lane. He said that he did not know he was being chased by the police patrol car until his co-accused, the girl friend, told him to speed up. The girl also told him that if the police caught her, she would be in great trouble. That was the time when he turned right into Laichikok Road against the red light and against a traffic sign. He said he did not know there "ere any drugs in the bag. He speeded up instinctively because the girl sounded to be in great fear.

8. His girl friend, the co-accused, also gave evidence. In court she said that she had borrowed money from a woman by the name of Wai Ling. She was forced by this War Ling to work for her in a fishball stall. As an alternative, War Ling told her to take a bag to Shatin Railway Station. Otherwise she would be beaten up and still be sent to the fishball stall. She received that parcel in the afternoon of the 18th of November and went direct to the applicant's home. She had her suspicion when she was told by Wai Ling not to let herself be found by the police. This suspicion was confirmed when she looked into the bag at the applicant's home before the applicant's return. She never told the applicant of her trouble with Wai Ling. Nor did she tell her own parents of the duress she alleged. After her arrest she never told the police of her trouble with UK Ling. Under cross-examination, she admitted that after arrest she was asked by the police where she went the night before, i.e. on the 18th of November and she had replied that she die not know. She was further asked here she had her meal the night before and she said she had forgotten. In answer to a police question as to who was the driver of the motor-cycle that she said she didn't remember. She explained that she gave all these false answers to the police because she was too nervous.

9. In his summing up, the learned trial judge directed the jury on the question of presumption. However, the only presumption he mentioned was the presumption as to trafficking in section 46. He said:

"If a person is in possession of more than a very tiny amount of dangerous drugs, our laws say that there is a presumption that he is in possession of them for the purpose of trafficking in them and not merely for his own use. That is a presumption which an accused person may rebut, on the balance of probabilities, if he can show that it is more probable that the drugs were for his own consumption."

He also told the jury to consider the case of the two accused separately. He said:

''You must consider the case of each accused separately because the stories they tell you are in any case rather different stories, the girl saying she was perfectly aware at the time of this dramatic chase that she was carrying a bag of heroin, and the 1st accused (the applicant) - of course, he is much older than she is - saying that he was quite unaware of this and that everything he did was simply prompted by her importunity.''

As to the burden of proof, the judge said:

"The burden of proving these charges, of course, lies fairly and squarely on the Croon. The Crown has to satisfy you beyond a reasonable doubt of the guilt of either of these accused on any of the charges before you can convict. That, as you have been told, does not mean beyond every shadow of a doubt. It does not mean with mathematical certainty because human affairs - court matters - do not lend themselves to that sort of certainty. You are not to indulge in fanciful doubts on behalf of the accused, turning yourselves upside down and inside out, agonising about things for which there is no basis in the evidence and no basis in commonsense, but never-theless you are to be thoroughly sure before you bring in a verdict of guilty.

On the defence evidence, he said:

"These two accused have given evidence before you and that was to try and convince you of their innocence or at least to cause you to feel so doubtful about the prosecution case that you felt you could not conscientiously convict."

He also told the jury:

You have an important duty to fulfil, a duty to the public that serious crime should be suppressed and punished, and a duty to the accused that they should have a fair deal.

On the question of possession, the judge said:

"There may, of course, be joint possession of any article. I suppose that is fairly obvious. Of course, the Crown's case is that there was joint possession of the large amount of herein in the brown shopping bag and the Crown's suggestion is that these two were acting as couriers, moving it around Hong Kong.

Dealing with the case of the 1st accuse fairly and squarely, because there is not a great deal to say about it, you simply have to ask yourself: Was he, to his knowledge, moving drugs around Hong Kong?  You must only convict him if you are satisfied beyond reasonable doubt that he knew that that is what he was doing.

He has told you his story, that at the request of the 2nd accused he was going to ride his motor-cycle to Shatin Railway Station where she was going to hand over this bag, the contents of which he was unaware of, to somebody there."

Later, he said to the jury:

"If you think it is at all possible that he was simply innocently carrying this girl and her bag of goods, then you will acquit him.

If you are satisfied that he must have known what he was carrying, and was party to acting as a courier of dangerous drugs, of course you will convict."

10. The grounds filed in support of the application run to no less than 12 complaints.  But learned counsel for the applicant was content to summarize all the complaints under three headings. The first complaint was that the judge only directed the jury on the basis of joint possession and had not directed the jury generally as to possession. The second complaint was that the judge by his direction appeared to suggest to the jury that the applicant had a burden to discharge to the extent that they had to convince the jury of his innocence. The third complaint was that he took the cases of the 2 defendants together, in fact, their cases were different.

11. Counsel cited the case of Searle ⁽¹⁾ in support of his contention of the first complaint. In that case drugs were found in a holiday coach containing a number of people. No evidence was adduced that any of the defendants on the holiday coach was in possession. They were all charged on the basis of joint possession, It was held that the direction of the judge appeared to equate knowledge with possession. Mere knowledge of the presence of a forbidden article in the hands of a confederate was not enough: joint possession had to be established.

12. Counsel sought to enlist the decision in the case of Coney ⁽²⁾ where it was said that the more presence at a prize fight was not sufficient. It had to be established that the accused assisted or encouraged the unlawful act in some way before he could be convicted as aider and abettor.

13. In Patel's Case ⁽³⁾, it was held that the direction that he (the defendant) knew the bag contained something and was content to aid in its possession whatever it might be was a wrong direction.

14. In CHEUNG Yuk-san v. The Queen ⁽⁴⁾ the evidence Pas that drugs were found on a lorry. The appellant was in the car in front of that lorry. There were suspicious circumstances.  He appeared to be directing the lorry. It as held that suspicious circumstances were not sufficient to raise the presumption that he was in possession of the drugs.  That case is simply not applicable to the circumstances of the case under consideration.

15. Having considered those cases in relation to the facts in the present case, we are of the opinion that the ratio in none of the aforesaid cases is directly applicable.  In the present case the girl had possession of the bag and had knowledge that it contained dangerous drugs. The learned trial judge referred to the presumption in section 46. He did not refer to presumption as to possession in section 47. That direction was favorable to the accused.

16. As far as the applicant was concerned, the only issue was whether he haw also knowledge that the drugs were contained in the bag. That was fairly and squarely put to the jury in the aforesaid passages of his direction. That, was a jury question. If the jury came to the conclusion that he, the applicant, had knowledge, then they mould have to consider the facts that the applicant was the owner driver of the motor-cycle on which the bag containing drugs was carried. The applicant, at the request of his girl friend, accelerated despite the sounding of the police siren. He went against three sets of traffic lights and ignored a traffic sign. These were strong indication that applicant at that moment must have been desperate to get away. When the applicant was questioned by the police, he merely told the police that he was going for a joy ride. He never told the police that his girl friend asked him to take her to the Sharon Railway Station to deliver a bag to a person.

17. With reference to the third complaint, the trial judge did specifically tell the jury to consider the case against the applicant and that against the girl separately.

18. However, we do find the applicant has a point in his second group of complaint. We think that the use of the terms "convince you of their innocence and the subsequent comment, "you have an important duty to fulfil, a duty to the public that serious crime should be suppressed and. punished" to have been too strong. In the face of the evidence against the applicant, he obviously has a burden to rebut the presumption against him. But he Old not have to "convince" the jury of his innocence. All he had to do was to create a reasonable doubt in the mind of the jury as to whether or not he had knowledge of the drugs. Furthermore, it was not the duty of the jury to suppress and punish crime. However, we fine these to be not significant enough as to affect the verdict of the jury. In our opinion, even with these misdirections which in the circumstances we do not think to be material, a jury without doubt would have convicted on the evidence. We were satisfied that there was no miscarriage of justice even though that it would have been better had the judge used less strong terms as such words.

19. Learned counsel for the applicant produced before us a schedule of sentences of similar cases. The sentences in the previous cases involving approximately the same amount of drugs ranged between 8 - 12 years. The higher sentences within this scale were cases where manufacturing of drugs was involved or connected. Here it was a case of a man of 30 years of age, with a clear record. He was found to be a courier of this amount of drug. There was evidence that he was induced by his girl friend who was the master mind. Admittedly, the girl was much younger. She received a sentence, of 6 years imprisonment. Having regard to the disparity of sentences between the two, we felt that the applicant would have a justifiable grievance. For these reasons we granted him leave to appeal against sentence, allowed the appeal and substituted a sentence of 9 years imprisonment which we felt would be appropriate.

(1)    1971 Crim.L.R. 592

(2)    (1882) 8 Q.B.D. 534

(3)    1970 Cvim.L.R. 274

(4)     1969 H.K.L.R. 27

Representation:

J. Mullick (W.S. Lo & Co.) for appellant

Kilgour (Crown) for respondent