Cheung Yuk San and Others v. The Queen

CACC000638/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.638 OF 1968

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Coram: Briggs, Mills-Owens and Huggins, JJ.

Date of Judgment: 31 December 1968

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JUDGMENT

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Huggins, J. gave the judgment of the Court at the request of Briggs, J.:

1. We are satisfied that there is no substance at all in any of the points raised on the appeal against conviction by the first appellant, nor are we disposed to interfere with the sentences imposed on either the first or the second appellant.

2. In our view there is only one point in this case which merits consideration and that is whether there was a case to answer made out against the third appellant on the basis that he was in unlawful possession of the drugs on the lorry. The evidence was that he hired a private car shortly after midnight on the same night as the first accused hired the lorry in which the drugs were found; that he was acquainted with the first accused; that when hiring the car he used the surname of the first accused and gave as his address a former address of the first accused; that two days before the night on which the drugs were found he visited the area where they were picked up; that on the night the drugs were found he was seen in the hired can at a very early hour and after the drugs had been loaded into the lorry, in circumstances from which it might be inferred that he was leading the lorry; that two and a half hours after the lorry was stopped by the police he drove back to the scene, having spent the intervening two and a half hours somewhere on a stretch of road in an isolated part of the New Territories; that his only explanation for his presence (given in a statement to the police) was that he was out for a joy ride. There was no evidence that he was present when the goods were leaded into the lorry.

3. The learned judge summed up to the jury on the basis that there was evidence from which they might infer that the third appellant was the "field commander" of the operation of transporting these goods, in the lorry, from the place where they were off-loaded from a sampan to their final destination. The question is whether the evidence was sufficient to justify the jury's being invited to draw that conclusion beyond a reasonable doubt. If the appellant was the field commander we would agree that he had control of the lorry within the meaning of s.16 so that the presumption of knowledge would arise. It is argued on the appeal that even if the third appellant was not the field commander but merely a guide that gave him sufficient control to attract the presumption. In the early part of his summing-up the learned judge said:-

"An example of that, very close to what the Crown is alleging in this case, would be if I required certain goods to be taken to my home and I supervise their loading on to a lorry and then the driver says to me, 'But I don't know how to get there,' and I say, 'Well never mind, I am just going there, follow my car.' He has the direct physical control of that lorry whilst he is following my car, but I have constructive possession of it in the sense that he is following my direction, speeding up when I speed up, slowing down when I slow down, turning to the right when I turn to the right and to the left when I turn to the left, and eventually arriving at a destination to which I have guided him."

This example may have been confusing because of its closeness to the case before the jury. It went beyond the evidence in the present case and it is difficult to know what effect this may have had upon the jury: as I have said, there was no evidence that the third appellant supervised the loading of the lorry and no direct evidence that he was guiding it. However, we think it is a reasonable assumption that the jury were satisfied that the third appellant was leading the lorry in the private car. Was that sufficient evidence that he was in command of the operation or, to use the words in the section, "in control of the lorry? In the view of the majority of the court his precise role was never established and a mere guide does not have control within the meaning of the section, lacking that element of domination or command which is there implicit.

4. It has been said that "control" is a word of "wide and ambiguous import": per Mr. Justice Dixon in Bank of New South Wales v. The Commonwealth⁽¹⁾. Nevertheless one must construe it in its context. Section 16 is evidentiary, i.e. in given circumstances it supplies evidence of matters which would otherwise have to be proved strictly. What may thus be proved are some of the elements of possession. The control which must be proved in order to bring the presumption into play is a control which suggests a probability that the controller is in possession. In Choi Lang-hung v. Reg.⁽²⁾ the court was concerned with a somewhat similar provision in the Arms and Ammunition Ordinance. The court said at p.270:

"It was part of the appellant's case that the control of the tin was actually in his employer at the material time, that his employer was nearby and that he acted under his employer's orders. If this were so then there could have been in our view no effective control over the tin by the appellant".

Again, in Lau Yiu-nam v. Reg.⁽³⁾, when dealing with the same section, the court referred to the omission from it of the word "custody" and said that

"The Legislature ...... consequently may well have intended to exclude from the operation of s.34 a mere physical custodian who is only a servant and, owing to the presence of somebody in direct authority over him, so completely deprived of any control over the article in question that he cannot fairly be regarded as having control or possession in the sense in which these terms are used in s.34."

The significance of these passages seems to be that a person who may appear to have a measure of control may not have such control as will attract the presumption. Such a case would be where a chauffeur was driving his employer's car with the employer in the car: he would be directly controlling the movements of the vehicle but the effective control of the car for the purposes of the section would be in the employer under whose direct orders he was driving. That is not to say that an employed driver who knowingly drives his employer's car with drugs on board commits no offence. As was said in Wu Him-fong v. Reg.⁽⁴⁾:

"A prima facie case (of unlawful possession) must, ordinarily, arise against an unaccompanied driver of a vehicle in which dangerous drugs are being carried. We would refer generally to the case of Warner v. Metropolitan Police Commissioner 1968 2 All E.R. 356".

On the other hand, if, though knowingly driving with drugs on board, he is accompanied by his employer (the owner of the car) who is himself in unlawful possession of the drugs he is guilty of aiding and abetting the unlawful possession of the employer. This would not be joint possession because they would have different forms of control (see the criticism of the use of the phrase "joint possession" in the summing-up in Wu Him-fong's Case⁽⁴⁾), but two employees of equal standing in a vehicle might be in joint possession: see Lee Sik-cheong v. Reg. (No.1)⁽⁵⁾.

5. In the present case prima facie the first accused was in control of the lorry. If the third appellant was his employer or was otherwise so situated towards the first accused that he could command his obedience to any directions he might give, then the third appellant was in control. But if he was nothing more than a guide he was no more in control than would be a messenger sent to the first accused with the address to which the first accused was to deliver the drugs: he could direct the first accused where to go but would have no control over whether the first accused followed the directions and therefore no effective control over the goods.

6. However strong the grounds of suspicion the court is of opinion that there was insufficient evidence to justify a finding that the third appellant was the field commander or had any such control over the lorry as is contemplated by s.16. The difficulty which then arises is that the jury were never invited to consider the case against this appellant without the aid of the presumption. It would, we think, have been open to them on the evidence to find that he did know of the existence of the drugs on the lorry and was aware of their nature and that by guiding the driver of the lorry he was aiding and abetting the unlawful possession of the drugs. As it is we cannot say that the jury must have come to that conclusion and we cannot apply the proviso to s.80(2) of the Criminal Procedure Ordinance.

7. For these reasons we allow the appeal of the third appellant against conviction: the conviction is quashed and the sentence set aside. The applications of the first and second appellants are dismissed.

31st December, 1968.

Representation:

2nd Appellant in person

Mr. Arculli for the 3rd Appellant

Mr. Duckett for the Respondent

(1) (1948) 76 C.L.R.1, 385.

(2) 1958 H.K.L.R.261

(3) 1959 H.K.L.R.291, 297

(4) 1968 Cr. App. No.459.

(5) 1965 H.K.L.R. 765, 770.