Renato Ackermann v. The Queen
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CACC000693/1981
Coram: Roberts, C.J., Li & Silke, JJ.A. Date of Judgment: 21st December, 1981. ----------------- JUDGMENT ----------------- Roberts, C.J.: Preliminary 1. The defendant pleaded guilty before a district judge to possession of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7 of the Dangerous Drugs Ordinance and was sentenced to three years and three months' imprisonment. He applied for leave to appeal against sentence, which was refused by a single judge on the 9th October. He renewed his application for leave to appeal against sentence on the 15th October. 2. At the hearing of that application before us on the 27th November, he sought leave out of time to appeal against his conviction. We granted such leave because it was submitted to us, on that occasion, that the statements of fact which had been accepted by the district judge disclosed no offence in law on the basis of Mayer v. R.(1). 3. This court, in the case of CHAN Wai Lam v. R.(2), considered the circumstances in which it is proper for an appellate court to receive an appeal against conviction where there has been a plea of guilty before the trial court. In that judgment we referred to R. v. Forde(3) in which Avory, J., who delivered the judgment of the Court of Criminal Appeal, stated that one of the circumstances in which that court could entertain an appeal against conviction was if it appeared that, upon the admitted facts, the defendant could not in law have been convicted of the offence with which he was charged. 4. Being satisfied that there was an argument of substance that the defendant, by virtue of Mayer v. R.(1) had committed no offence in law, we gave leave to appeal against conviction. Facts 5. According to the statement of facts, which was put before the district judge and accepted as accurate by the defendant, he arrived in Hong Kong on a Philippines Airline flight in the evening of the 3rd May, 1981. He produced his baggage to a customs officer at the Airport for examination. Because of the unusual thickness of the bottom of his suitcase he was escorted to the search room. There he was personally searched, though this revealed nothing. A thorough check was then made of his suitcase, revealing a false compartment at the bottom of the case, which contained what were later analysed as 12 blocks of cannabis, weighing 3,062.50 grammes. 6. Under caution, the defendant admitted that a friend of his, named Bruno, had offered him US$1,000, an air ticket from Hong Kong to Rome and a return ticket to Hong Kong or Manila, if he would carry the suitcase to Rome via Hong Kong. 7. When questioned by a customs officer, the defendant stated that the reason for taking the drugs via Hong Kong was that this was thought to be less dangerous than taking them directly from Manila to Rome. It seems to have been accepted by the judge that the defendant had no intention of disposing of the drug in Hong Kong, only of carrying it to Rome and leaving it there; and that therefore he had imported it into Hong Kong solely for the purpose of subsequently exporting it to Italy. Facts of Mayer v. R.(1) 8. The facts of Mayer, on which counsel for the defendant relied, were very similar to the facts of this case. Mayer was travelling by air from Bangkok to Los Angeles, but intended to spend a scheduled overnight stop in Hong Kong. He was due to continue his journey on the same plane on the following day. On arriving at the customs for clearance, about 6¾ pounds of cannabis were found in secret compartments in his luggage. Mayer was charged with trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance. 9. It was argued by counsel for the Crown that the facts of this case could be distinguished from those of Mayer on the ground that the date of departure of this defendant for Italy had not been fixed before he arrived here, whereas in Mayer the defendant had a through ticket with a fixed booking made before his arrival in Hong Kong; and that in this case, unlike Mayer, further instructions were to be given to the defendant while he was in Hong Kong, with the dangerous drugs in his possession, as to their future disposal. 10. We do not consider that the fact that an onward plane had not been fixed, or that further instructions as to delivery were to be given to him while he was here, if such an explanation is accepted, alters the status of the drugs. If, by law, in accordance with the provisions of the Dangerous Drugs Ordinance, drugs which are only brought here in order to be taken out again are held to be "in transit" they will remain so, even if the time of export and the ultimate destination of the drugs were still a matter of doubt. 11. We observe, however, that a court may well be disposed, in circumstances in which there was no definite onward booking or where the defendant expected to receive further instructions, on these facts to reject the defence that the goods were "in transit", within the meaning of that definition of the Dangerous Drugs Ordinance. Law in Mayer(1) 12. In Mayer it was accepted that the drugs were brought in by the defendant for the sole purpose of exporting them from Hong Kong to another country; and that they were 'in transit' within the meaning of section 4 (4) of the Dangerous Drugs Ordinance. 13. The Crown had argued in Mayer that, notwithstanding the provisions of section 4 (4), the defendant could properly be convicted of possession for the purposes of unlawful trafficking contrary to section 7 of the Dangerous Drugs Ordinance, which was the offence with which this defendant was charged, even if the defendant could not be convicted of trafficking contrary to section 4 of the Ordinance. The trial judge in Mayer acceded to this submission and convicted him under section 7. The Court of Appeal quashed the conviction. 14. The definition of 'trafficking' in section 2 of the Dangerous Drugs Ordinance -
15. From this it would follow that a person who imports drugs into Hong Kong, even for the sole purpose of later exporting them to another country, would be trafficking in the dangerous drugs, were it not for section 4 (4), which excludes drugs which are in transit from the operation of the section. 16. From this the conclusion was drawn in Mayer(1) that if drugs were in transit there could be no trafficking in them; and that if there could be no trafficking in them neither could there be possession of them for the purpose of trafficking, at least in Hong Kong. 17. The President of the Court in Mayer(1), in reaching his conclusion that a person who is in possession of dangerous drugs which are in transit within the meaning of section 4 (4) cannot be convicted of an offence against section 7, observed -
18. Had the question been an open one, we might have found some weight in the reverse side of the argument, namely that because section 4(4) by its terms specifically states that this section (that is to say, section 4) does not apply to a dangerous drug in transit, the Legislature, if it had intended to exclude dangerous drugs in transit from the ambit of other sections in Part II of the Ordinance, would have said that Part II, rather than just section 4, did not apply to a dangerous drug which was in transit. 19. However, it is wrong for a division of this court to disagree with an earlier ruling of another division, unless we were satisfied that it was clearly wrong. Here we are not so satisfied. On the authority of Mayer(1), therefore, we must conclude that the exemption of drugs in transit must apply to section 7 of the Dangerous Drugs Ordinance as well as to section 4. 20. The conviction of the defendant, therefore, on the charge brought against him under section 7 must be quashed. Result of acquittal 21. This is an unfortunate result, since it creates a dangerous loophole in the Ordinance. A drug trafficker, who is seeking to bring dangerous drugs into Hong Kong for disposal here, might arm himself with a through ticket. If he is caught with the drugs on entry, he will plead that he meant to take them somewhere else and will produce an onward ticket to prove it. Unless there is other evidence to discredit his story, he may well be acquitted of a charge under section 7. 22. In addition to the danger that the import of drugs for local consumption will be less dangerous, this anomaly may also encourage traffickers to use Hong Kong as a transit stop, in the distribution of drugs to other parts of the world. 23. We suggest that there is a need for an amendment to the law to deal with this gap, though the Crown could perhaps, as an alternative, discourage such traffic by the use of section 14 of the Ordinance. Alternative convictions 24. We note, as was done in Mayer(1), that the defendant would seem to have been guilty of an offence contrary to section 14 of the Dangerous Drugs Ordinance, in that he removed a dangerous drug which was in transit from the aircraft in which it was brought into Hong Kong, without a removal licence issued by the Director under section 15 of the Ordinance. 25. Had he been charged with that section he would have no answer, it seems to us, on the facts which have been admitted. A conviction for an offence against that section carries a maximum of 10 years' imprisonment or a fine of $100,000. 26. Nor does it seem to us that there can be any doubt that he was in possession of these drugs in a manner which offends section 8 of the Dangerous Drugs Ordinance. It is provided by section 42 of the Ordinance, as read with the Third Schedule, that a defendant who is charged with possession of dangerous drugs for the purpose of unlawful trafficking under section 7 may be convicted of the offence of simple possession contrary to section 8(1)(a) of the Ordinance, the maximum penalty for which is imprisonment for three years or a fine of $10,000. 27. We shall, therefore, quash the conviction for unlawful trafficking against section 7 and substitute a conviction for the offence of simple possession under section 8 of the Ordinance. 28. Before deciding what proper sentence should be imposed for that offence, we are unfortunately obliged to comply with section 54A of the Dangerous Drugs Ordinance which forces us, before "any sentence other than a non-custodial sentence is imposed" to consider a report of the Commissioner of Prisons on the suitability of the defendant for cure and rehabilitation and on the availability of places at addiction treatment centres. Although it is a waste of time to seek such a report in relation to a defendant of this type, who is not an addict, we are obliged to go through this formality. 29. We will remand the defendant for a period of two weeks, in order that a report under section 54A of the Dangerous Drugs Ordinance can be furnished. Representation: Miss Corinne Remedios (Fairbairn & Kwok) for Appellant Mr. J. Dick, S.C.C., for Respondent. (1) (1977) H.K.L.R. 536. (2) Crim. App. 879 of 1980. (3) (1923) 17 C.A.R. 99 |