Wai Man v. The Queen
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CACC000705/1981
BETWEEN
_________ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 23 March 1982 ______________ J U D G M E N T ______________ McMullin, V.-P.: 1. The appellant WAI Man was convicted of possession of dangerous drugs for the purpose of trafficking, the verdict of the jury being delivered on the 4th of August 1981. There was a single charge in which it was alleged that the quantity of the dangerous drugs was 1113.6 grammes of a mixture containing 189 grammes of salts of esters of morphine. 2. The appellant is a dental technician. Together with his younger brother, he operates a laboratory at No. 34, Jordan Road. He appears to be in a good way of business earning some $10,000 net per month from the laboratory plus $3,000 in commission fees from a medical supplies company for his work in connection with their products. At the time of the events with which this case is concerned, he was living in Flat 34C in a multi storey residential building in Broadway Street. He was living there with a young woman called CHIN Mei-ngan. 3. A party of 3 or 4 police officers under the leadership of Inspector LAM Chi-kit went to Flat 34C on the 20th floor of the building in Broadway Street at 6.30 a.m. on the morning of the 31st of October 1980. They disposed themselves at various points of advantage, in effect laying an ambush for any person who might approach the flat or come out of it. 4. At about 8.00 a.m. two men were seen to mount the stairs and approach the outer metal grille of Flat 34C. One of them was the present appellant. He was seen to produce a bunch of keys with one of which he was about to open the metal grille when Inspector Lam and his men emerged from hiding and declared their identity. The man who was with the appellant immediately ran off but was pursued and arrested and brought back to the flat. His name is CHAN Sin-ho. 5. The police party then entered the flat by using the keys produced by the appellant which opened not only the outer metal grille out the inner wooden door and, behind that, the front door of the flat itself. A search was then conducted in the premises. 6. In the course of that search, the police discovered two cardboard boxes which were found in the sink in the kitchen surrounded by a tumbled pile of dishes and pots and pans and other utensils. The boxes were sealed and apparently in pristine condition as though unopened since purchase. Each box bore a legend on the outside purporting to identify its contents. One was said to contain Dextro-Lemon, apparently a powder for making a lemon drink. The other was marked "ESSENCE OF CHICKEN WITH GINSENG". These boxes were opened and inside each box was discovered a number of transparent packets containing a white powder which, upon later examination, turned out to be the dangerous drugs laid in the charge. 7. In the course of the search, the appellant's girlfriend CHIN Mei-ngan arrived at the flat. Further search revealed the appellant's passport and savings book and re-entry permit and some travel documents belonging to CHIN Mei-ngan. The appellant and the girl and CHAN Sin-ho were then arrested and taken to the police station. 8. Evidence was given by a Madam LIU Sai-yuk. She said that she was the tenant of Flat 34C, having rented it from the owner Mr. LO Yue-kwong. It appears, however, that Madam Liu never resided in the flat and did not even visit it. From the outset she had an occupant or sub-tenant who simply paid the rent, $1,200 a month, through the bank to the owner. She herself made no profit upon this arrangement. 9. The first occupant, a man called Chan, used the premises until July 1980 when he returned the keys to Madam Liu. Sometime in August 1980 another person went into occupation. This man figured largely in the evidence in the case. He was known by a number of names but for the purpose of convenience he will be referred to as Ah Kwok which was the style most familiarly applied to him. A single bunch of keys to the premises was given by Madam Liu to this occupant and sometime in August or September of 1980, she received from him a phone call asking permission to allow the appellant, Wai Man, to share the premises with him. She made no objection to this arrangement but could not say whether the defendant had actually shared the flat with Ah Kwok since she never visited the premises. 10. Ah Kwok continued to pay the rent to the bank in the same way as had his predecessor. Madam Liu identified Ah Kwok when he appeared as a witness at the committal proceedings when she was giving evidence at those proceedings. 11. The appellant gave evidence at the trial. His story was that he was living in a flat in Hillwood Road with his girlfriend and the rent was about to be sharply increased. He mentioned this to Ah Kwok who was a childhood friend and the latter invited him to share the flat of 34C. Broadway Street. The arrangement was that the appellant would pay $800 of the $1,200 rent to the owner every month. This was on the basis that Ah Kwok was willing that the appellant and his girlfriend would use the sole bedroom while he. Ah Kwok, would sleep on the sofa in the sitting room. The appellant said that Ah Kwok slept on most of the nights between the 20th and 30th October in the sitting room on the sofa though once or twice he did not return to the premises. 12. The appellant went on to say that on the 30th of October his friend CHAN Sin-ho, a seaman by profession, rang him in some distress because of a quappel with his wife which, he said, was likely to result in divoroe proceedings. In compassion for his unfortunate state the appellant asked him to meet him at the laboratory in Jordan Road and he did so. They then went for a meal and collected two other persons, Ah Kwok and a man called Jimmy, for a mahjong game which was played at the laboratory. The game went on until 5 or 6 a.m. the following morning when the party broke up and Ah Kwok and Jimmy went off upon their own while the appellant and Chan returned to the flat in Broadway Street. It was on arrival at the flat at 8 o'clock that they were apprehended by the police. The appellant denied all knowledge of the interior of the kitchen and its contents. 13. On the facts adduced by the Crown which were substantially not in issue, and upon certain facts agreed under section 65B of the Criminal Procedure Ordinance, it is evident that all the relevant presumptions in sections in 46 and 47 of the Ordinance were raised against the appellant. 14. The first ground of appeal alleges a failure on the part of the trial judge to direct the jury that possession involves a measure of control. In this connection we were referred to the decisions of the Court of Appeal in England in R. v. Irala-Prevost(1) and R. v. Rutter and White.(2) Brief accounts of these cases appear respectively in the 1965 Criminal Law Review at page 606 and the 1959 Criminal Law Review at page 288. It may be said that in both of those cases the Court of Appeal did stress the necessity to direct the jury that they must be satisfied that the defendant had, upon the evidence, been shown to have some measure of control over the forbidden substance (in the one case dangerous drugs and in the other explosives) before they could convict, and that mere knowledge of the existence of the substance was not sufficient. These cases, however, are not of material assistance in relation to the charge with which the court is dealing in the present case. This is so because the relevant English legislation relating to each case did not contain any provisions comparable with the provisions setting up the presumptions in sections 46 and 47 of the Dangerous Drugs Ordinance. 15. In England R. v. Warner(3) appears still to be good law so that in the cases which have become known as the "container" cases once the prosecution have proved that the defendant had in his possession some container in which the dangerous drugs were found, the question of his guilt or innocence turns upon whether the evidence is sufficient to show beyond a reasonable doubt that he knew what the substance was. In resolving that question the jury must ask themselves (a) was the defendant completely mistaken as to the nature - and not merely the quality - of the contents of the container; (b) did he have an opportunity to examine the contents; (c) did he suspect that there was anything "wrong" with the contents. A conviction can only follow if the jury are satisfied that these questions must be answered adversely to the interests of the defendant. In other words they must be satisfied beyond reasonable doubt that he had an opportunity to examine the contents and either did not do so and had reason to be suspicious or else did so and must have realized that the contents were suspicious and were wholly different in nature from what he had believed the container to contain. 16. That the law in England on the container cases remains in a somewhat unsatisfactory condition is evidenced by a passage in the 4th edition of Smith and Hogan which appears at page 86.
The learned authors go on immediately thereafter to point out that despite the modification of the law effected by the misuse of Drugs Acts 1971 the problems created by Warner(3) still persist. 17. The situation in Hong Kong is wholly different. Possession, custody or control of the keys to any premises (section 47(1)(d)) automatically places a defendant in possession, custody and control of the dangerous drugs found therein until he shows on a balance of probability that he was not in possession. 18. In Sweet v. Parsley(4) Lord Reid, dealing with the legislator's difficulty over legislation intended to repress some form of conduct which is thought to be adverse to the public interest, refuses to accept that the only choice available to the legislator is between the creation of a provision which involves the usual ingredient of mens rea or one creating an absolute offence. At page 226, he says:
The other possibility to which he refers is of no concern in the present case. What has been quoted above is sufficient to indicate how differently the law stands in England and how, in this instance at least, the Legislature in Hong Kong has succeeded in accommodating the public interest within provisions which are at least thought to be desirable by the courts in England. 19. Mr. Huggins, who argued this point with an admirable admixture of tenacity and restraint, concedes that the decision in CHAN Shiu-shing(5) may seem to stand against him. Delivering the judgment of the court, Huggins, J., as he then was, refers to the following words from the judgment of Mills-Owens, J., in WU Him-fong v. R.(6) which are to the following effect
Huggins, J. then referred to CHAN Sun v. R.(7) where it was said that the word "possession" in section 10 of the then Dangerous Drugs Ordinance did not have the same meaning as at Common Law. The learned judge then goes on to say:
Mr. Huggins, as well becomes him, accepts the authority of these words. He seeks, however, to escape their effect by an ingenious distinction. Whereas knowledge of the thing possessed may be inherent in the very word possession when it is attributed to some individual the concept of control, Counsel says, is not. If this is so then, he says, the judge was at fault in not directing the jury as to the nature of constructive possession which may arise under certain circumstances and which may show that the possessor has neither the authority to exercise nor the intention of exercising physical control over the object of which he is deemed to be in constructive possession. 20. We cannot agree that any such direction was any more desirable in the present case than the court thought it to be in CHAN Shiu-shing(5). As there, so here such a direction would only have tended to confuse the jury in view of the nature of the defence which was a simple denial of all knowledge not only of the dangerous drugs but of the very boxes in which they were found. Constructive possession may arise in various ways all of which, however, involve an absence of immediate physical possession or custody or control (see the judgment of Gould, J., in HON Sai-king & others v. R.(8)). If the defendant did not know of the existence of the boxes let alone of the dangerous drugs within them, he could not be in constructive any more than physical possession either. 21. What is clear here is that the appellant was in full possession, custody and control of the keys to the premises. Proof of that (and there is no dispute upon the matter) fixes him with presumptive possession of the drugs which includes presumptive knowledge of the boxes and their contents and their nature and his power to reduce them to physical possession if he so desires. This is so even though the boxes were apparently new and were sealed. Even the existence of a locked door to a room containing dangerous drugs does not prevent the presumption arising against any person found with a key to the main door of the apartment (see once more Huggins. J., in R. v. CHAN Shiu-shing & others(5)). 22. It is evident that the appellant was not discovered in actual physical possession of either the boxes or their contents and it was therefore unnecessary to labour the distinction between constructive and actual possession. The presumption in section 47(1)(d) creates in the appellant a kind of artifical or constructive possession. The possession of the drugs is construed to follow from a proven fact - physical possession of the key - a fact which, needless to say, must be proved beyond reasonable doubt. If nothing in the Crown's case and nothing in the defence case suffices to dislodge that presumptive possession, the defendant is deemed to possess the drug with all the elements which that notion of possession would attract in the layman's mind and in particular knowledge of the existence and nature of the drugs and of the appellant's power to reduce them to physical custody and control if he so wishes. 23. Thus it cannot be said, where the facts are proved which give rise to the presumption of possession and the defence is a simple denial of all knowledge of the existence either of the container or the drugs within it, that it is necessary to warn the jury to consider that the appellant may not have had effective control of the container and its contents since the possession attributed to him by virtue of the possession of the key is possession in the full layman's sense including custody and effective control. What the jury must consider is whether on the evidence as a whole it is more probable than not that the defendant's denial has succeeded in dislodging the fact of possession of the drugs attributed to him by virtue of the presumptions. 24. Counsel's tenacious argument did not end there. The judge, he said, failed to direct the jury that even if they disbelieved the appellant as to his knowledge of the existence of the boxes and their contents, they yet must go on to consider whether there was a possibility that he nevertheless may have dissociated himself from them and done nothing to exert control over them. Alternatively, that even if the defendant was aware of the existence of the boxes in the kitchen, he may simply not have known what the nature of their contents was. Since, however, the defence was that the appellant had never used the kitchen at all and had no knowledge of anything contained within it and since there was nothing in the prosecution evidence to show positively that he had or had not entered the kitchen such a direction would have amounted to an invitation to the jury to consider possibilities - not probabilities - and possibilities of a purely speculative nature. 25. There are occasions when defences alternative to that put forward by a defendant must be put to the jury even if such alternatives differ wholly from his defence and may even be in conflict with it. An obvious example of such an occasion is the murder trial where the defence is alibi and the Crown evidence affords possibilities of provocation or even of self-defence. 26. In the present case where there is nothing in the Crown's case but the discovery of the drugs and the discovery of the keys to the grille, wooden door and front door of the flat in the appellant's possession, plus an acknowledged occupancy of some ten days, there is no material on which the jury could reasonably be asked to consider, despite what the appellant himself said, that probably he had gone into the kitchen and probably had seen the boxes and probably did not know what was inside them; alternatively, that he probably knew what was inside them but intended to have nothing to do with them. Even stated as possibilities - which would be the wrong test - such an airy contrivance of speculation would do no honest jury credit. 27. We will return hereafter to the third ground which is the only ground to occasion misgiving in this court. 28. The fourth ground alleged a material irregularity in the conduct of the trial arising from the fact that in cross-examination by counsel for the Crown it was put to the appellant that he had been involved not only in possessing the drugs but also in (a) purchasing them, (b) conspiring with CHAN Sin-ho to deal in them, and (c) conspiring with MAN Chi-kwok (Ah Kwok) to traffic in dangerous drugs in general. We were referred to certain English decisions in which convictions had been quashed because suggestions put by the prosecution to the defendants intimated to the jury the possibility that the defendants had been guilty of offences quite distinct from those with which they had been charged. We think, however, that Mr. Longley had the best of this argument when he pointed out that all the cases cited were cases in which (a) offences on previous occasions, wholly distinct and separate from the offences charged, and of a different nature, had been put to the witness; and (b) the questions were put in such a form as to intimate to the jury that the prosecutor was in possession of facts, over and above the evidence in support of the incident charged, which would, if produced, show that the defendant had been guilty of such other offences. 29. We were referred to several passages in the evidence where these suggestions were put by counsel to the appellant. We are satisfied that nothing in any of these questions could have produced in the minds of the jury any adverse reflection upon the appellant on the basis of the prosecutor's knowledge of undisclosed facts which, if produced, would show that the appellant had been guilty of offences other than those with which he was charged. Secondly, the questions which were put derived naturally from the circumstances which had been described in the evidence. There was a valid evidential basis for these suggestions in the evidence at large, including the curious behaviour of Chan when the police first approached him and the appellant. 30. Moreover, although trafficking and possession for the purpose of trafficking are separate offences created by different sections in the Ordinance, where a person is found to be in possession of a quantity of drugs such that he is presumed to be trafficking, there is automatically an element of conspiracy in the charge as laid. The possibility that the appellant was engaged in trafficking and not merely in possession for the purpose of trafficking on one single occasion was patent upon the facts as they emerged. 31. We cannot agree with counsel's point that the putting of these questions might tend to blacken further the case against the appellant and prejudice the jury when they turned to consider whether or not the appellant was truly in control of the dangerous drugs, that control being imputed to him, as it were, artificially by the presumptions. In any event, this part of counsel's argument really harks back to the original objection concerning control with which we have already dealt. It should be remembered that the effect of the presumptions, when raised, is to make it unnecessary to prove by direct evidence certain elements of the offence which, in the absence of the presumptions, would need to be proved by direct evidence putting the matter beyond reasonable doubt. When raised and not rebutted, whether by the defence or upon the evidence as a whole, the effect is "to allow an inference of guilt to be drawn from facts which would not otherwise justify such an inference." (per Huggins, J., in R. v. CHAN Shiu-shing(5) at page 498). 32. These suggestions put to the appellant did not involve anything wholly distinct from the offences charged. It would, no doubt, have been possible for the Crown to charge the appellant and the girl CHIN Mei-ngan and perhaps Ah Kwok and CHAN Sin-ho as well with conspiracy. We are not to speculate why the prosecution decided not to do so. The point here is that it cannot be said that the suggestion of conspiracy put to the appellant resulted in any prejudice to his case which already stood foursquare on the facts giving rise to the presumptions, which facts receive some additional support from the behaviour of Chan. 33. The fifth ground of appeal was that the conviction should be regarded as unsafe and unsatisfactory because the deposition of Ah Kwok at the committal proceedings was not put before the jury although the defence sought to adduce it in evidence. This was sought to be done under the provisions of section 70 of the Evidence Ordinance and the application received a sympathetic hearing by the learned commissioner who nevertheless found himself forced to the conclusion that the language of the section was clearly intended to give to the Attorney General, and to him alone, the power to produce the deposition of a prosecution witness once the circumstances detailed in the section had been proved. We can only agree. The whole cast of that section is to permit the prosecutor to tender the deposition of a witness who was expected to support the prosecution case but who, for any of the reasons stated in the section, is not available to give evidence at the time of trial. 34. The cases of R. v. Oliva(9) and Dallison v. Caffrey (10) are not of any material assistance. The former deals with the duty of the prosecutor in respect of the witnesses appearing on the back of the indictment. The principle established in that case is that the prosecutor has a discretion to call or not to call any such witness and that discretion must be exercised fairly; but where any such witness gives the direct lie to the prosecution's other evidence on the substance of the charge, the prosecutor is not obliged to call the witness or even to tender him for cross-examination and his only duty is to make the witness available to the defence. 35. The facts in Dallison v. Caffrey(10) are quite remote from our case and the only dictum which counsel enlisted is that of Lord Denning M.R. (at page 369) where the learned judge says it would be reprehensible to conceal from the court evidence which would be favourable to the defence. No one would deny the truth of that principle but nothing of the sort is to be found in the present case. We do not know what the deposition of Ah Kwok contained but we must assume that it contained matter favourable to the defence. He was not, however, a witness whose name appeared on the back of the indictment. He was called for the defence at the committal and since then strenuous but unavailing efforts have been made to find him. It may very well be that, as the commissioner himself observed, there is here an unfortunate lacuna in the law and one which the Attorney General might well consider with a view to amending legislation. However, as it stands it is not, in our view, possible to apply section 70 whether by way of analogy or otherwise to support the lurking doubt which counsel suggests we might feel as a result of the jury not having had this deposition placed before them. 36. Finally, there is the point which has most concerned us. The third ground of appeal alleges a misdirection of fact. The passage in the summing-up of which complaint is made goes as follows:
37. It is not necessary to set out the several corrective passages taken from the transcript of evidence which are set out in the Ground of Appeal. Suffice it to say that the judge was in error when he ascribed to the appellant the phrase "We seldom eat out." The nearest one comes to that is a passage in the evidence at page 54 where in answer to a question the appellant said "I seldom went out in the evening". The question concerned the fact that the girl Chin had no key of her own. Counsel wanted to know how she would get in when neither he nor Ah Kwok was home. Apart from this misquoting of the evidence, and misquoting it out of context, the judge is there contrasting the phrase "We seldom eat out" with the totally contradictory phrase "We never have had a meal in the house ........" when it is plain that neither phrase appears anywhere in the evidence. Such a contradiction simply did not occur. The appellant did say at one point that he took no meals in the flat. 38. Mr. Huggins argues that this passage in the summing-up might have laid the jury open to three distinct misconceptions. Firstly, if the jury thought that the defendant had said that he and his girlfriend seldom ate outside the flat, that bore directly upon the defence which was that he had never used the kitchen and had no knowledge of its contents. If they had consistently eaten on the premises, it would be far more likely that he would know about the existence of the boxes and their contents. Secondly, counsel says that this manner of directing the jury would have diverted their attention from the girlfriend of the appellant because all the passages bearing upon the subject indicate that the appellant was denying his personal knowledge of the kitchen and its contents and he was not saying that his girlfriend was equally ignorant. That might have prevented the jury from considering that the girl was aware of the contents of the kitchen whereas the appellant may not have been. Thirdly, he says that to allege that there had been this contradiction might have led the jury to regard the appellant as an untrustworthy witness because he had changed the story and could thus be thought to have lied. In fact, however, the appellant's evidence on this matter was reasonably coherent and consistent. What it amounts to is that he throughout denied that he had made any use of the kitchen. He did not say that his girlfriend had made no use of the kitchen. He did say that he normally ate out and when pressed on this matter by the judge at the conclusion of the cross-examination, he said "Only on seldom occasions that I don't eat outside". The judge then said that it was those occasions which he was interested in and the appellant replied that if he did not eat outside, he would go to his mother's place to eat. In answer to another question, he said that he did not regard eating with his mother as eating out but rather as eating at home. 39. Mr. Longley fairly concedes that there was a misdirection of fact. He maintains, however, that it is of minimal importance and cannot have affected the jury in any way adverse to a proper conclusion. He says that the evidence discloses a variation of story and a contradiction as significant as the contradiction which the judge wrongly suggested had occurred. In saying, as he did, that he and his girlfriend normally ate outside, the appellant must be taken to imply, counsel said, that sometimes they did not eat outside but ate in the premises. Mr. Longley then points to a later passage in which the defendant in answer to the question "You say you took no meals in this flat?" replied simply "Right." That no doubt does bear the appearance of a contradiction. We cannot agree that it was a contradiction of comparable gravity with that perceived - wrongly - by the learned commissioner. Moreover, when quizzed by the commissioner on his statement that normally they ate out, be explained that on the occasions when they did not do so he ate with his mother and did not regard that as eating out. That was not a very substantial explanation of the appellant's possible self-contradiction but it is true that it was never put to the jury whose province it would have been to decide whether or not (a) there was a contradiction and (b) it had been adequately explained. The question is whether this misdirection is material in the sense that if a proper direction had been given a conviction must nevertheless have followed. 40. The substance of the appellant's defence was that he knew nothing about the contents of the kitchen. There is no doubt that the learned commissioner's exposition of the defence case between pages 16 and 20 of the summing-up betrays a somewhat skeptical tone. Thus a number of questions are suggested for the consideration of the jury in such a manner as to leave little doubt that in the judge's opinion the answers which should be returned to them would disfavour the defence. In itself there is nothing wrong with that. A judge is perfectly entitled to disclose his own opinion of any particular piece of evidence provided he clearly warns the jury that the facts are for them to find and that his opinion upon the facts is not to be considered in any way binding upon them. That was certainly done in the present case (see pages 12 and 13 of the summing-up). 41. We do not believe that the jury, if properly directed on this part of the evidence, would have come to any conclusion other than they did. Even in the context in which it occurred the answer "I seldom went out in the evening" is, on the face of it, to some extent in contradiction with "normally we ate outside". Throughout this part of the cross-examination the appellant was being pressed as to his familiarity with the kitchen and its contents and one would have expected him to make it plain that what he was saying was that although he normally ate out he usually came back to the flat after he had eaten and did not go out again. The appellant's evidence was fresh in the jury's mind. The true rule as to misdirections of fact is stated at para. 918 in Archbold - 40th Ed.
42. A perusal of the many cases cited thereafter will show how grave the misdirection must be before the appeal can succeed. In R. v. Wann(11), Lord Alverstone, C.J., says:
Many of these cases in which convictions were quashed will be seen to amount to either a grave misrepresentation or else a total failure to put the defence to the jury (Marriott(12) is a good example); or a total misrepresentation thereof (see Rhoda(13)). We do not consider that the present misdirection went anything like as far as that. We are satisfied that the case is one justifying the application of the proviso. (1) (19650 Cr. L.R., p. 606 (2) (1959) Cr. L.R., p. 288 (3) (1967) 51 Cr. App. R. 437 (4) 53 Cr. App. R. 221 (5) (1974) H.K.L.R. 493 (6) (1968) H.K.L.R. 685 (7) (1956) 40 H.K.L.R. 55 (8) 34 H.K.L.R. 39 (9) (1965) 49 Cr. App. R. 298 (10) (1965) 1 Q.B. 348 (11) 7 Cr. App. R., p. 138 (12) 18 Cr. App. R. 74 (13) 5 Cr. App. R. 85 Representation: A. Huggins, Esq. (Cheung & Chan) for Appellant. P.K.M. Longley, Esq., Crown Counsel, for Respondent. Silke J.A. : 43. This appeal concerns the conviction of the Appellant upon a charge of possession of dangerous drugs for the purpose of unlawful trafficking. 44. My Lord President has dealt with the facts in extenso and I do not intend to recover that ground. 45. He has further dealt with grounds of appeal and the arguments advanced in their support by Mr. Huggins. In relation to the third ground my Lord President has said that it occasions "misgiving in this Court". With that observation I agree. My misgivings go further than those of the other members of this Court and while I am in respectful agreement with that which has been said on all the other grounds I find myself in reluctant but firm disagreement on the conclusions reached upon the third ground. 46. The third ground alleges misdirections as to the evidence by the Commissioner in that part of his summing-up which reads as follows:-
47. This was incorrect for what the Appellant actually said, was, the first passage being in chief:-
For obvious reasons he was cross-examined extensively upon his use of the kitchen in the flat at Broadway Street, Mei Foo Sun Chuen, and a reference was made to his eating habits in a flat in which he had previously lived - at Hillwood Road.
48. He continued his denial of having taken meals in the Broadway Street flat and in answer to the question:-
He later went on to state, in answer to questions put to him by the Commissioner, that:
49. He went on to say that if he ate at his mother's place he regarded it as eating at home. 50. The net effect of all this was that kitchen in the Broadway Street flat was not used for the cooking of meals during his ten odd days' tenure and that, when he made reference to the "seldom occasions" that he did not eat outside, the Appellant meant those occasions when he ate at his mother's place. 51. The significance of this, and I would accept the Commissioner's comment that the evidence was "significant", was that the drugs were found in that kitchen. They were contained in that which, on the surface, were two cellophane wrapped, unopened, cartons of proprietary food. They were shown in evidence to have been in the sink of that kitchen which sink also held a quantity of bowls and dishes, bottles, containers, pots and pans - it being full to overflowing with these items. The containers were not hidden. 52. The defence was lack of knowledge of the presence of the drugs or indeed of their containers. 53. It was vital to that defence that a clear and correct direction be given. Mr. Longley, who appeared for the Crown on the hearing of the appeal, very fairly conceded that there was a misdirection on fact but submits that its effect was minimal. 54. I do not agree. I view the misdirection as likely to undermine the defence raised and in that sense to deprive the Appellant of the opportunity of having his defence being left to the jury. 55. With respect, the passage complained of amounts to more than a "mere misstatement" in the R. Wann(1) sense. 56. In Badjan(2) Edmund-Davies J. as he then was, said this:
57. While the learned Commissioner here did make reference to this aspect of the defence, by no means tenuous, of the Appellant he by that which he said in effect took away that defence. 58. It was in my view a misdirection which in the circumstances of this case was of such a nature that I feel it to be at least reasonably probable that the jury might not have returned their verdict had they been properly directed. The Appellant was thus deprived of the possibility of a verdict of acquittal. 59. In these circumstances I do not think the proviso to be available and I would allow the appeal and quash the conviction. (1) [1912] 7 C.A.R. 135 (2) [1966] 50 C.A.R. 141 at 143 Representation: A. Huggins Esq. (Cheung & Chan) for Appellant. P.K.M. Longley Esq., Crown Counsel for Respondent. |