The Queen v. Wong Kin-wang
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CACC000696A/1983 [Dangerous Drugs: Possession for unlawful trafficking: presumptions: control of vehicle: evidence of defendant at hearing of appeal who remained silent at trial.] IN THE COURT OF APPEAL 1983, No. 696 (Criminal) BETWEEN
_________ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 16th March 1984 ___________ JUDGMENT ___________ Silke, J.A.: 1. The applicant, WONG Kin-wang, was tried before a jury, jointly with two other persons, for the offence of possession of a dangerous drug for the purpose of unlawful trafficking therein. He was the third named defendant on the indictment - the first being Tsiong Ming Tju(f) - "D1" - the second being Sit Soon - "D2". 2. He was convicted and was sentenced to a term of twelve years imprisonment with an order made that he pay the sum of $30,000 towards the costs` of the prosecution. 3. He now seeks leave to appeal against both conviction and sentence. 4. At trial D1 was found guilty and sentenced to eight years imprisonment. D2 pleaded guilty and was sentenced to nine years' imprisonment. The quantity of drug involved was 7.669 kilos of a mixture containing 6.079 kilos of salts of esters of morphine. 5. D1 gave evidence and D2 was called to give evidence on her behalf. The applicant did not give evidence. 6. On the 15th July 1982 a party of Customs Officers was on surveillance duty. They saw the applicant drive a car to Pak Hoi Street near the Galaxie Hotel. In that car were the three defendants and a stranger. D1 and D2 got out of the car and, accompanied by the stranger, went into the hotel. The applicant, the driver o?the car, remained in the car and it was, on the evidence of D1, he that had suggested that she go into the hotel with D2. 7. A man came from the vicinity of the hotel and went up to the car engaging the applicant; who was still in the driving seat, in conversation. He got into the car and the applicant moved, it to another position not far from the hotel. He and the man got out and went to the boot - or hatch back - which visa then opened. They there spoke together for a short while. 8. Then D1 and D2 emerged from the hotel with D1 carrying a red holdall. The applicant had returned to the driver's seat and he was seen to either move himself forward or move the car seat forward to facilitate Dl's putting the holdall into the car. The keys of the car were at that time in the ignition. 9. Members of the Customs party went up to the car and arrested the defendants, the applicant putting up a short struggle. The holdall in the car contained the drug. 10. After arrest the applicant made a statement, under caution, in question and answer form. In the course of this he refused to answer certain of the questions. He refused to sign that statement. This document was admitted into evidence by consent and read at the trial. 11. D1 in her evidence claimed herself to be an innocent agent thinking the holdall to contain nothing more than clothing, cameras and tinned food. She and D2 resided together with the applicant in the applicant's flat. She thought that the applicant was the owner of the car and that D2 was going to buy it for her as a gift. The journey was a mere joy ride. 12. D2 in his evidence said that neither D1 nor the applicant knew that the holdall contained drugs. 13. In the cautioned statement the applicants described himself as a broker in gold, silver and stocks and shares, having worked in the Han Tai Stock Investment Company for about two months before business slackened off. In answer to Question 10 in that statement he described his movements on the 15th July saying that, after a visit to his wife who was in hospital, he went at about 4:30 p.m. to have tea at the Man Bun Restaurant and then walked to a fast food shop at the junction of Cheung Lok Street and Chi Wo Street where he met D1, D2 and another man, Ah Tai. D1 asked him about the Mazda car parked outside the fast food shop and whether it was a good one. She told him it had been given to her by a customer. 14. After the conversation the applicant walked to the Lei Loy Cafe at the Astor Theatre. There he saw Ah Tai get out of the car. He asked Ah Tai where D1 and D2 were to which Ah Tai replied that he did not know. He and Ah Tai made a closer inspection of the car, Ah Tai pressing a button at the driver's seat to open the catch of the boot. The applicant went around and opened the boot itself while inspecting the interior. Ah Tai told him D1 and D2 were coming. He saw them with another elderly person and at that juncture Ah Tai said that he had to leave. The applicant closed the boot and saw Dl, D2 and Ah Tai go to the left side door of the car. The elderly man had left by then. The applicant wanted to leave and as he saw the boot had not closed properly by went to the driver's door and pressed the boot. release button. At that point he was arrested. 15. He denied ever having seen the holdall before being shown it in the police station. 16. The statement taker was crass-examined and he denied a refusal to allow the applicant to consult a lawyer upon the answer to Question 10 though he accepted that, on a number of occasions, the applicant refused to answer questions, having told the witness that he would neither answer further questions nor sign the document. 17. This statement, and it is the only, part of the applicant's direct story that was before the jury, contrasts strongly with the evidence given by the surveillance team. This was the way, - apart, of course, from that said in court by D1 and D2 - the evidence stood at the close of the case for the prosecution. 18. Mr. Martin Thomas, Q.C. with him Mr. Sujanani, who presented this appeal, argued upon four broad principles that this conviction cannot stand. 19. The first was that on a proper interpretation of the provisions of the Dangerous Drugs Ordinance, Cap. 134, possession of drug simpliciter does not require any mental element: that the general directions of the trial judge were, if this be so, in line with the English decisions such as Warner(1) and that this was a mistake. The Crown must prove directly knowledge of the existence of the drug which is an ingredient of the possession. The provisions of the Ordinance as to presumptions are evidentiary only and do not absolve the Crown from leading direct evidence of knowledge. He urges us to take a fresh look at the way the presumptions apply. 20. He further adumbrates a second principle that mens rea - that is knowledge - is a necessary proof in the offence of manufacturing dangerous drugs and it is also a necessary proof in the offence of possession for the purpose of unlawful trafficking. 21. He says further that there is no presumption of mens rea in the Ordinance so that the burden of proving the mental element in the offence rests upon the prosecution throughout. The essence of criminality, he submits, is knowledge coupled with intent. The Legislature cannot override the. burden placed upon the Crown of directly proving that essence. 22. He cited in support of these somewhat` novel arguments the Warner(1), Sweet v. Parsley(2) line OF cases and, in this jurisdiction or arising from it, R. v. Chan Shiu Shing(3), R. V. Wai Man(4), R. v. Cheung Fuk Ki(5), R. v. Cheung Yuk San (6), Kwan Ping Pong(7), a Privy Council decision, and in particular R. v. Chan Siu man and another (8). 23. The essential issue, if I understand Mr. Thomas correctly, is that the Legislature intended that the actual carrying of drugs, without knowledge or intent - that is possession - to be an absolute offence and, that being so, the allegation that that possession is for the purpose of unlawful trafficking requires proof of knowledge that the "thing" is a drug and of the intent to traffic. These must be positively proved. 24. Subsection (1) of the section 7 of the Ordinance reads:
25. We would agree that, without looking at any of the other provisions of the Ordinance, this section gives the impression, by its wording, of creating an absolute offence. 26. But regard must be had to the provisions of section 47 of the Ordinance. That reads, in its subsection (1),:
27. So far simple possession only without, on the face of it, any mens rea. 28. Subsection (3) goes on:
29. So: simple possession of a drug - not directly proved to be possessed but presumed to be possessed by virtue of evidence of the matters set out in subsection (1) - becomes possession with knowledge. A presumption of mens rea. 30. If the evidence at trial is such as to give rise to these presumptions then mere lack of physical possession is not sufficient to rebut - subsection (4). 31. So far, possession with knowledge. Section 46 provides for the further presumption that when a person is in possession, proved directly or presumed - and that must mean possession with knowledge in the light of section 47 - of quantities of drugs in excess of the amount set out in section 46:
32. There is no doubt that these presumptions are evidentiary. They appear in the legislation to assist the Crown in proving, and I emphasize that word, the commission of a serious offence., They avoid the necessity for the arguments advanced in Warner(1) and Sweet v. Parsley (2) - and, incidentally, answer Lord Pearce's cri de coeur in the former. For myself I would have thought them to both assist in bringing home these grave offences, which are difficult of direct proof, to the perpetrator, to avoid the possibility of innocent persons being wrongly convicted and to avoid the necessity for harsh decisions which can undermine respect for the law. 33. But they go further than the creation of matters of evidence from which inferences only can arise. They are, once created by proof of the primary facts which can give them life, evidence of themselves and they are rebuttable by an accused on the lower burden placed. upon him. 34. In Chan Siu Man(8) we held, following Yeung Tee Man v. R. (9) that the wording of section 6 of the Ordinance, and the absence of any presumptive provisions directly relating to knowledge, makes positive proof of mens rea a requirement before a conviction for the offence of manufacturing can be come to by a jury. The consequences upon conviction being of sufficient gravity that it would be quite wrong to consider the offence an absolute one. Mens rea in the sense of knowing that which was being made was a dangerous drug and intending to make it. If that were not so then it would be necessary to read into section 45 a presumption as to knowledge by the use of the words "the dangerous drug" in the last line of that section. 35. Indeed the evidence grounding such offence can well, of itself, give rise to an inference that such mens rea existed but there must be sufficient primary facts for the jury to come to the conclusion that that inference is the one and the only one that can be drawn and therefore entitle them to a finding of guilt without the benefit of presumptions. 36. That, in our view,, as the law now stands, is the true difference as between' a count of possession for unlawful trafficking and one for manufacture. 37. We do not think Mr. Thomas' novel argument, persuasively presented as it was, to be sound. 38. That having been said, it lies for consideration now as to whether or not the facts here were sufficient to give rise to the relevant presumptions and, further, whether or not the directions of the trial judge upon those facts and the law, were sufficient. 39. I would interpolate here that Mr. Thomas made application to us in the course of the hearing of this appeal - which application was refused - to call the applicant to give now the rebuttal evidence which he did not give at trial. 40. He submitted that Counsel at trial having advised the applicant not to go to the box, advice which the applicant accepted, we ought not to look at the situation from the point of view of the negligence, if any,, of Counsel in giving such advice, the better ,approach. being for us to hear what the applicant has to say as to why he did. not, give evidence, what instructions he gave Counsel and that which he would have said if given the chance to say it. 41. Only then can we and should we concern ourselves with the question as to whether or not the verdict is safe and satisfactory. 42. He submits that, if a man has a genuine grievance that he has not had his day in Court, it is not just what he thinks but what his family and his friends and acquaintances think. The confidence of the public generally in the judicial system may be undermined. 43. Mr. Thomas accepted that the decision Counsel, not Counsel appearing in this Court, took was a difficult one. He thinks it not to have been the "best decision" that could have been taken in the circumstances. Of course in hindsight, Dl and D2 having given evidence tending to exculpate the applicant and that evidence not having been believed, it may well have been advisable for the applicant himself to attempt the rebuttal. 44. There is no question of the applicant's being denied the opportunity to give evidence. At the close of the defence evidence called on behalf of Dl there was a short adjournment. When the trial resumed the following passage appeals on the transcript:
45. Mr. Hagon, who appeared for the Crown both here and below, then embarked upon his final address. 46. There are risks involved in both the going into the box, and being subject to cross-examination, and in the decision not to give evidence. The risk is somewhat greater in taking the latter course when rebuttable presumptions are in issue. Here the jury might have accepted the evidence of Dl and, to a greater extent, that of D2 as to the lack of culpability of the applicant - as indicated that evidence was already before the jury. This was a factor which must have lain in the consideration of both the applicant and his Counsel. 47. We are not oblivious of the fact that the liberty of the subject is involved here. The consequence of conviction is serious. We accept that that which passes as between Counsel and his lay client does not, in these circumstances, attract the secrecy attached to the confessional veil but, in the absence of anything on the face of the record indicative of injustice or a lack of conscious decision, or of the creation of a genuine grievance, or any matter so compelling as to give us cause for concern upon these matters, and within the ambit of section 83V of the Criminal Procedure Ordinance, we thought that it was too late now to give fresh evidence and to raise explanations which could well have been raised at the trial. 48. On the evidence generally - and on the matter of the sufficiency of the directions of the trial judge - it is Mr. Thomas' submission that first there was no sufficient evidence to prove that the applicant had in his custody, was in control of or had possession of the car in which in turn the drugs were held. And second that there was no evidence of his knowledge of the contents of the holdall. 49. In the light of the presumptions already referred to the first point is the more important. He allies to this submission that which he says were the inadequate directions of the trial judge and which he submits reversed the burden of proof. We shall deal with the "directions" point in a moment. 50. The jury had before them the evidence of the journey of the car driven by the applicant to the area of the Galaxie Hotel - and the applicant's statement giving a different version. They had the evidence of his leaving and returning to the driving seat - again with a different version given by the applicant in his statement. They had the evidence of the car's keys being in the ignition, of the applicant altering his position to facilitate the placing of the holdall in the car - though the trial judge did not seem to think much of that last piece of evidence. They had the evidence of D1 who said she was told by the applicant to put the bag she was carrying on the back seat. They had evidence that the applicant was in the driving seat when arrested and that he put up a short struggle. They had evidence that the holdall contained a considerable quantity of dangerous drugs. They had the evidence of D1 and D2 both giving versions differing from that of the applicant in his statement as to the nature of the journey and of D2, in particular, seeking to exculpate the applicant. 51. This is somewhat the case of a container within a container. It is clear that the case the prosecution sought to prove was that the drugs were to be conveyed elsewhere, that the applicant was the driver of that which was to convey them, that the applicant had knowledge of that which was taking place and was a full participant in the enterprise. 52. To bring their case home the prosecution must show that there were sufficient primary facts proved to give rise to the presumptions upon which they relied and which, if unrebutted - and that by either internal evidence in their own case or by defence evidence generally - would lead the jury to decide beyond a reasonable doubt the guilt of the applicant. 53. And the issue was control. For even Mr. Thomas concedes that the applicant might be in possession of the drug if it were proved he were in control of the car. Though he did qualify this by citing the example of a paid chauffeur driving his master on his master's business and carrying that master in ignorance of his master's possession of a prohibited substance. 54. While the "control" of the car was not an absolute one in the sense of ownership or sole custody, we think the evidence to have been sufficient to permit the jury to find proved as a primary fact that the applicant had sufficient custody and control of it to bring into play the presumption of possession. 55. That being so how did the trial judge deal with the matter. 56. The jury were adequately directed at the outset of the summing-up as to the general burden and standard of proof. We do not accept the criticism that, viewing the summary as a whole, the trial judge reversed the burden of proof. He clearly told the jury that the "beyond doubt" burden rested upon the prosecution. He further directed them in these terms:
57. He directed them as to the proper standard to apply. He told them that the applicant's denial of knowledge contained in his statement - which was before the jury for all purposes - if believed, should lead to his acquittal. 58. Mr. Thomas takes issue with the directions as to control for he says there was confusion in those directions between control as to mere driving and that which I might term "possession control". 59. What the trial judge said was this, having recited the general provisions of section 47 of the Ordinance:
60. Later the trial judge, having stated that it mattered not on the operation of the presumption when the drugs were placed in the car though such evidence could assist the applicant in displacing it, said:
61. And finally on this point he directed:
62. Of these passages it is Mr. Thomas' submission that the trial judge, in effect, never distinguished between the two forms of control. 63. He cites in support Cheung yuk San v. R., (6) where Huggins, J. (as he then was) said, having made reference to passages on control contained in Choi Lang Hung v. R. (10) and Lau Yiu Nam v. R. (11) :
64. The passages had referred to acting under the orders of an employer or of a person in direct authority and to a person being a mere physical custodian. 65. Huggins, J. went on:
66. We think that the situation here is analogous. to, though more clear cut than the aiding and abetting example. 67. The applicant was the driver of the car in the sense that he had it in his non-exclusive custody and control. It was never suggested that he was the owner possessor. The keys which activated the engine were in the ignition and for his use. They were an indicator which, in the context of all the evidence here, the jury would be entitled to consider in coming to their conclusion on the issue of control. And that is really all that the judge was saying. We do not think there to have been the confusion suggested by Mr. Thomas. 68. The second main point on the directions was that the trial judge never gave any directions as to the burden of proof of possession if the presumptions did not arise. 69. This whole case was run on the presumption basis. It was implicit in the directions of the trial judge that the jury had to find guilt upon their satisfaction on those presumptions. It is true that no explicit direction was given as Mr. Thomas suggests there should have been. We do not think, looking at the summing-up as a whole, that the jury could have been under any illusion on this score. 70. In the event we will give leave to apply but dismiss the appeal against conviction. (1) [1969] 2 A.C. 256 (2) [1969] 53 Cr. App. R. 221 (3) [1974] H.K.L.R. 493 (4) C. A. 705 of 1981 (5) C.A. 628 of 1982 (6) [1969] H.K.L.R. 27 (7) [1979] H.K.L.R. 1 (8) C.A. 154 of 1983 (9) [1977] H.K.L.R. 172 (10) [1958] H.K.L.R. 261 (11) [1959] H.K.L. 291, 297 Representation: Martin Thomas, Esq., Q.C. and R.K. Sujanani, Esq. instructed by Messrs. Lawrence Pang & Co. for applicant. J.G. Hagon, Esq. for Crown/Respondent. |