Wong Kwong-wah v. The Queen

CACC000722/1981

Coram: Li, Silke, JJ.A. & Bewley, J.

Date of Judgment: 14th December, 1981

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JUDGMENT

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Li, J.A.:

1. This is an appeal against conviction and sentence. The only issue is whether the provisions of section 23 and section 34 of the Pharmacy and Poisons Ordinance (Cap. 138) create an absolute offence. As it involves a point of law of public interest, it has been referred to this Court by a single judge.

2. On the 18th of September last year, two pharmacy inspectors visited the Hon Wah Medicine Company of which the appellant, WONG Kwong-wah, is a partner. 13 bottles of Chuifong Toukuwan Complex and 6 bottles of Chuifong Toukuwan New Formula were seized in the presence of the appellant. He admitted possession of these bottles and the pills contained therein.

3. Random samples were taken from these bottles and analysed by the government chemist. It was found that the sample pills contained Indomethacin which is a Part I poison within the meaning of Cap. 138.

4. At the trial it was conceded by the Crown that the appellant had no knowledge that these sample pills contained the afore-said poison. However, the Crown contended that the language of the relevant provisions of chapter 138 was such that mere possession gave rise to an absolute offence. Once the appellant admitted possession of the pills, his knowledge whether the pills contained poison was completely irrelevant.

5. Counsel for the appellant contended that mens rea was an essential ingredient of the offence of possession. If the appellant had no knowledge as to the poisonous contents in the pills he was not in possession of the poison. The basis of this argument was that the provisions in chapter 138 did not create an absolute offence.

6. Having heard the arguments of Counsel on the agreed facts, the learned magistrate found that the provisions of section 23 of Cap. 138 create an absolute offence. Accordingly, he found that the appellant was in possession of Indomethacin contained in those pills, because 'knowledge' was irrelevant. The reason for his finding is that he felt that he was bound by an obiter dictum of Addison, J. in the case of TAI Muk-kwai v. The Queen⁽¹⁾. The issue in that case though related to Indomethacin was quite different. There was no concession by the prosecution that the appellant in that case did not know that the substance contained Indomethacin. At page 16 Justice Addison said:

Later at page 20, he said:

7. The grounds of appeal filed in the present appeal merely reiterate the same question as put before the learned magistrate. They are:

8. In view of the aforesaid, it is necessary to examine some of the relevant provisions in Cap. 138. Section 23 provides that:

"No person shall have in his possession any poison included in Part I of the Poisons List otherwise than in accordance with the provisions of this Ordinance, the proof whereof shall lie upon him."

Section 34 provides:

"Any person who is guilty of an offence under this Ordinance shall, unless a penalty is otherwise expressly provided, be liable on conviction to a fine of $10,000 and to imprisonment for 12 months, and to a further fine of $1,000 for every day during which the offence continues subsequent to the day on which he was convicted of such offence."

9. The obiter dictum of Addision, J. was found on the authority of R. v. Warner⁽²⁾ which is a House of Lords' decision. That decision involves the interpretation of section 1 in the Drugs (Prevention of Misuse) Act 1964, the wording of which is somewhat similar to section 23 of Cap. 138. As such it commands respect and careful examination.

10. In Warner's Case⁽²⁾, the appellant was charged with having drugs in his possession without being duly authorised contrary to section 1(1) of the Drugs (Prevention of Misuse) Act 1964. The evidence was that he was stopped by a police officer while he was driving a van. In the back of the van were found 3 cases, one of which contained scent bottles and another a plastic bag containing 20,000 amphetamine sulphate tablets. The appellant's explanation was that he had been to a cafe where he was accustomed to collect scent from one Bill. He was told by the proprietor of that cafe that the parcel from Bill was under the counter. He found 2 parcels there, namely, the one containing scent and the other which was found to contain the amphetamine tablets. He said that he had assumed that both contained scent.

11. On the question of possession, the learned trial judge directed the jury that if he, the appellant, had control of the box which turned out to be full of amphetamine sulphate the offence was committed and it was only mitigation that he did not know the contents.

12. Section 1(1) of the Drugs (Prevention of Misuse) Act 1964 provides:

"Subject to any exemptions for which provision may be made by regulations made by the Secretary of State and to the following provisions of this section, it shall not be lawful for a person to have in his possession a substance for the time being specified in the Schedule to this Act."

13. There follow the exemption of registered medical practitioners, veterinary surgeons and registered manufacturers or dealers of drugs.

14. The other provisions of the said Act and Regulations made thereunder extended the immunity to a wide variety of persons including public officers acting in execution of duty and postal officers who happened to be handling parcels containing drugs without their knowledge. It is not necessary to refer to them in detail.

15. It was on that basis and on the express words of section 1(1) of the 1964 Act that the House of Lords came to the conclusion that such section create an absolute offence.

16. Perhaps the strongest words are to be found in the speech of Lord Guest at page 300 in which he said:

"In construing the section certain considerations have to be borne in mind. The title of the Act is 'Drugs (Prevention of Misuse) Act, 1964' and the long title is 'An Act to penalise the possession, and restrict the importation, of drugs of certain kinds.' The title thus indicates that the evil is the misuse of drugs and that their possession is to be penalised. The actual words of section 1(1) 'it shall not be lawful for a person to have in his possession' a prohibited substance could not make it clearer that subject to certain exemptions the possession of prohibited drugs is an offence. With respect to those who hold that this is not an absolute offence I cannot conceive of any words which could make the offence more absolute. It is as absolute as it can be. I am not inclined to place much weight on whether there is or is not a presumption that mens rea is a necessary ingredient in a statutory offence, but if there was, the presumption has to some extent been whittled down in recent years (see Harding v. Price (1968) 1 K.B. 695, 701) and in any event the language of Section 1 in my view is sufficient to rebut any such presumption. The very doing of the act, as has been said, imputes mens rea. Other factors which are relevant to be taken into account are the mischief aimed at and the object of the prohibition. The mischief is clearly the unauthorised possession of the drugs which are injurious to health unless administered under prescription. The social evil of the trafficking of drugs is clearly struck at."

Later, at page 301, he said:

"A further indication that an absolute offence was intended is, in my view, that certain exemptions are provided in the Act and the Secretary of State is empowered to grant further exemptions which he has done in relation to public carriers and the Post Office (The Drugs (Prevention of Misuse) Exemptions Regulations, 1964)."

17. The aforesaid opinion appears to be founded on his consideration and approval of the decision in Lockyer v. Gibb⁽³⁾. This is evident because in the preceding page, at page 299, Lord Guest said:

"In the end of all, however, the meaning of 'possession' must depend upon the context. Lockyer v. Gibb (1967) 2 Q.B. 243 was a case under regulation 9 of the Dangerous Drugs (No. 2) Regulations, 1964 which is in similar terms to section 1 of the Drugs (Prevention of Misuse) Act, 1964. Regulation 20 defines 'possession' for the purposes of these regulations in the following way:

18. In that case Lord Parker C.J. said, at page 248:

19. Later he said, at P. 249:

20. At first sight the appellant's case in the present appeal is similar to those of the appellants in Warner's Case⁽²⁾ and Gibb's Case⁽³⁾. If that is so, what Lord Guest said would be applicable. However, I am of the opinion that his judgment must be considered in the light of certain distinguishing features in Warner's Case⁽²⁾.

21. First, he was only concerned with the consideration of the learned trial judge's direction to the effect that if the appellant had control of the box which turned out to be full of amphetamine sulphate the offence was committed and it was only mitigation that the appellant did not know the contents.

22. Secondly, the facts of Warner's Case⁽²⁾ show that, by inference, the appellant should have known the contents of the package under his control which contained drugs or amphetamine sulphate. It was a container case. He was merely told to collect one parcel and he saw fit to collect two without inquiring into its contents.

23. Thirdly, it was decided on the express words of section 1 of the 1964 Act as well as the exemption granted to many classes of persons who might be handling drug in innocence as evincing the intention of Parliament to create an absolute offence. In any event, having regard to the circumstances in which the appellant in Warner's Case⁽²⁾ came into possession, I wonder if it was necessary for their lordships to go to the extent of considering whether section 1 of the 1964 Act created an absolute offence before they applied the proviso.

24. In this connection, it is convenient at this stage to consider the case of Lockyer v. Gibb⁽³⁾ which formed the basis of Lord Guest's speech. In that case the defendant, stopped by a police officer in the street, was found in possession of a paper packet wrapping up a bottle with tablets. These tablets were found to contain morphine sulphate. The defendant's explanation on being questioned was that a friend gave the bottle to the defendant in the morning to look after for him. When asked about the name of her friend she said 'He did not give them to me. I was in a cafe with him and some other people and the police came in. He must have dumped them on me.'

25. She was charged under regulation 9 of the Dangerous Drugs (No. 2) Regulations, 1964 which provides that:

"A person shall not be in possession of a drug unless he is generally so authorised, or, under the regulation, so licensed or authorised."

26. Section 13 of the Dangerous Drugs Act, 1965, provides that:

"A person who acts in contravention of a regulation made under this Act shall be guilty of an offence against this Act."

27. Regulation 20 of the said regulations provides that:

"For the purposes of these regulations a person shall be deemed to be in possession of a drug if it is in his actual custody or is held by some other person subject to his control or for him and on his behalf."

28. In view of the provision in regulation 20 and of the evidence against the defendant in that case, one would have expected that it would not be difficult for a judge or jury to draw the logical inference that, having regard to the circumstances in which she had the tablets in possession, she knew the nature of the contents of those tablets.

29. However, the learned Chief Justice in that case, Lord Parker, C.J., adopted the approach that the question was linked up with the question whether the regulation imposed an absolute liability. For he said at page 248 as follows:

"As is well known, this is a question which is arising constantly, and indeed in connection with another provision dealing with drugs the matter has been before this court recently in Yeandel v. Fisher (1966, 1 Q.B. 440). No question of possession was involved in that case, but in giving judgment I did refer to the now familiar tests which one applies in these cases: one looks at the mischief aimed at by the Act, one looks at the sort of provision it is, in particular whether it is a public welfare provision, and one also looks at the exact language used. In that case I had no doubt that drugs were a matter of grave concern today to everyone, that it was the intention of Parliament as evinced by the legislation to tighten up more and more the control of drugs, and that if one considered the mischief aimed at alone, there was every reason for treating a provision such as this as a provision imposing absolute liability."

30. Again there was a distinguishing features in Lockyer's Case⁽³⁾ in that there was the deeming provision in regulation 20 of the Dangerous Drugs Regulations, 1964. In other words, the defendant was deemed to know in any event.

31. In my opinion, having regard to regulation 20 in that case, it was not necessary to consider whether regulation 9 created an absolute offence. Drugs having been found on the defendant in that case, she was deemed to be in possession of such drugs particularly in the absence of a concession that she did not have any guilty knowledge.

32. Returning to the case of Warner⁽²⁾ it is of interest to read some of the speeches of the other Law Lords. Lord Pearce at page 305, while holding that the term possession is satisfied by knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities is not an excuse said this:

"This would comply with the general understanding of the word 'possess'. Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believe them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty."

33. For myself I can only interpret this dictum of Lord Pearce to mean that it is a question of fact for the jury. If that be the case, then the concession by the prosecution in the present appeal that the appellant had no knowledge that the tablets contained Indomethacin is of great importance. It is so because Lord Pearce said later at page 307 as follows:

"It would, I think, be an improvement of a difficult position if Parliament were to enact that when a person has ownership or physical possession of drugs he shall be guilty unless he proves on a balance of probabilities that he was unaware of their nature or had reasonable excuse for their possession."

Lord Wilberforce said at page 312:

"Secondly, it follows that the direction to the jury in the present case was not correct, for they were told in effect that possession meant control, that control was shown and not denied, and that they need not inquire any further. If this was the basis on which they were asked to decide - and they may well have thought so - it was insufficient, and the verdict would not be sustainable. But the summing-up did in fact, in addition, put before them, as, in my view it should have done, the circumstances in which the package was received by the accused and found in his custody and the unsatisfactory explanations which he offered to the police: these were just what the jury should have been asked to consider on the question of possession."

34. In my opinion, this passage supports the proposition that in order to find the appellant in possession of the poison, guilty knowledge is one of the necessary ingredients. It may well be that once the prosecution has proved possession, a matter of guilty knowledge as to the qualities of the poison is a matter of inference. But it does not bar the appellant from showing that he has no guilty knowledge as to the poison contained in the pills. In this particular case, the prosecution has supplied the explanation by way of concession that, in fact, the appellant had no guilty knowledge.

35. Again in page 289, Lord Morris in his judgment lent force to the argument of inference. He said:

"A jury must not convict unless they are satisfied that possession in an accused has been proved. There can be no rigid formula to be used in directing a jury. Varying sets of facts and circumstances will call for guidance on particular matters. The conception to be explained, however, will be that of being knowingly in control of a thing in circumstances which have involved an opportunity (whether availed of or not) to learned or to discover, at least in a general way, what the thing is. The same result might follow if it was a matter of indifference whether there was such opportunity or not. If there is assent to the control of the thing, either after having the means of knowledge of what the thing contains or being unmindful whether there are means of knowledge or not, then ordinarily there will be possession. If there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains - then, ordinarily, I would suppose that there would not be possession. If, however, someone deliberately assumes control of some package or container, then I would think that he is in possession of it. If he deliberately so assumes control knowing that it has contents he would also be in possession of the contents. I cannot think that it would be rational to hold that someone who is in possession of a box which he knows to have things in it is in possession of the box, but not in possession of the things in it."

36. Finally, I come to Lord Reid's judgment. He held that guilty knowledge was an essential ingredient to the offence. At page 278, he said:

Later at page 279, at letter H, he said:

"Ignorance of the law is no defence and in fact virtually everyone knows that there are prohibited drugs. So it would be quite sufficient to prove facts from which it could properly be inferred that the accused knew that he had a prohibited drug in his possession. That would not lead to an unreasonable result. In a case like this Parliament, if consulted, might think it right to transfer the onus of proof so that an accused would have to prove that he neither knew nor had any reason to suspect that he had a prohibited drug in his possession. But I am unable to find sufficient grounds for imputing to Parliament an intention to deprive the accused of all right to show that he had no knowledge or reason to suspect that any prohibited drug was in his premises or in a container which was in his possession."

37. It is not necessary to refer to all the old cases that had been considered in Warner's Case⁽²⁾. A case which was decided by the Court of Appeal after the decision in Warner's Case⁽²⁾ is of interest. In the case of R. v. Marriott⁽⁴⁾, it was held that:

"the prosecution had to prove not only that the defendant had an unauthorised possession of cannabis resin but also that he had reason to know, at least, that there was some foreign substance on the penknife's blade."

38. Edmund Davies L.J. who delivered the judgment of the Court referred the case of Warner⁽²⁾. At page 190, in which he said:

39. In the case of Searle v. Randolph⁽⁵⁾, it was held that:

".... the difference between a cigarette end composed of or filled wholly with tobacco and one filled with a substance including cannabis was the same kind of distinction between an aspirin tablet and heroin tablet. It was sufficient for the prosecutor to prove that the defendant had possession of the cigarette ends and that at least one of them contained a measurable quantity of cannabis; the prosecutor was not required to prove knowledge by the defendant that the end contained cannabis."

40. It appears that the decision in the English cases centered on the burden of proof. In this case, it is not contended that the Crown had to prove guilty knowledge. What is maintained by the appellant in this case is that the Crown conceded that he had no guilty knowledge.

41. In the case of R. v. Fernandez⁽⁶⁾, it was said that:

"The majority view in Warner⁽²⁾ was that one could not safely regard the offence as absolute: some mental element, or subjective test, might have to be applied. In 'package' cases the position could be summarised as follows: prima facie the prosecution satisfy the onus on them by proving that the accused was in physical control of articles which were dangerous drugs. But if the suggestion is made that he was mistaken as to the nature of the goods then it may be necessary to consider what his mental state was. For example, if it is clear that he did not know precisely what the contents of the package were but nevertheless his conduct indicated that he was prepared to take it into his possession whatever it was then no difficulty arose in regard to proving that he was in possession of the contents for all purposes. Similarly if the accused took the package into his possession in a situation in which he should certainly have been put on inquiry as to the nature of what he was carrying and yet he deliberately failed to pursue an enquiry and accepted the goods in circumstances which must have pointed the finger of suspicion at their nature and at the propriety of his carrying them, then it was a proper inference that he accepted them whatever they were and it was not open to him to say that he was not in possession of the goods because he did not know what they were."

42. With respect, that is my understanding and interpretation of the decision in the Warner's Case⁽²⁾. Both the cases of Brian Lloyd Wright⁽⁷⁾ and Ashton-Rickhardt⁽⁸⁾, in which the principle in Warner's Case⁽²⁾ was applied, showed that the real issue in Warner's Case⁽²⁾ were:

43. In the present appeal, it has been proved by the prosecution that the appellant had possession of the tablets. It is also a fact that Indomethacin was not discovered until after a chemical analysis by the government chemist. Applying the principle in Warner's Case⁽²⁾ it was not incumbent upon the prosecution to show that the appellant had guilty knowledge that the tablets contained poison, namely, Indomethacin. However, that is far short of the proposition by saying that the appellant is barred from saying that in fact he had no knowledge as to the contents of the tablets, or that he had no means of finding out the contents of the tablets except by chemical analysis. Indeed, the prosecution in this case supplied the explanation and answer for the appellant because the prosecution conceded, at the commencement of these proceedings, that the appellant in fact had no knowledge. The facts and circumstances of the present appeal are clearly distinguishable from those in Warner's Case⁽²⁾ as well as in the case of Lockyer v. Gibb⁽³⁾.

44. As a further argument, one can draw a comparison with another Ordinance, namely, the Dangerous Drugs Ordinance which is in pari materia. One can presume that the problem of drugs in Hong Kong is on less if not greater than the trafficking of poisons. Section 8 of the Dangerous Drugs Ordinance provides as follows:

"Save under and in accordance with this Ordinance or a licence granted by the Director thereunder, no person shall have in his possession a dangerous drug."

45. The wording of section 8 of the Dangerous Drugs Ordinance is very similar to the wordings in section 23 of the Pharmacy and Poisons Ordinance. If such words of the legislature are capable of creating an absolute offence, then there will be no necessity for the provisions of section 47 in the Dangerous Drugs Ordinance which provides that:

"Any person who is proved to have had in his possession or custody or under his control -

shall, until the contrary is proved, be presumed to have had such drug in his possession."

46. The provisions in section 47(1) give rise to two matters of significance. Firstly, if section 8 of the Dangerous Drugs Ordinance creates an absolute offence, there will be no necessity for such presumption in the provisions of section 47. The second matter is that, even in matters of dangerous drugs, an accused person is given a chance to rebut that presumption. Had the tablets possessed by the appellant been found to contain heroin instead of Indomethacin, the appellant be charged under the provisions of the Dangerous Drugs Ordinance and be given the same concession by the Crown, it would, I presume, be difficult for the Crown to suggest that he had committed the offence of possession of dangerous drugs. Why then should an accused charged under the Pharmacy and Poisons Ordinance be deprived of a similar chance to rebut such a presumption?

47. Learned counsel for the Crown, if I understand him correctly, seem to suggest to this Court that the Pharmacy and Poisons Ordinance provided a lesser sentence. As such there would be no great injustice if a person without guilty knowledge was convicted and penalized. I do not feel that that proposition is worthy of an answer. The answer is to be found in the judgment of Lord Reid in the Warner's Case⁽²⁾.

48. As I said earlier the 1964 Act in England grants immunity to many persons who may handle the drugs in innocence. The Pharmacy and Poisons Ordinance provides no such exemption to these people except registered doctors and sellers. If a postman should without any knowledge handle a parcel which contains Part I poison, he has no defence at all. Similarly, a police officer who happens to come by Part I poison in the course of his duty will equally have no defence if he were charged under the Ordinance.

49. Learned counsel for the Crown suggests that in such cases the Attorney-General will exercise his discretion not to prosecute a police officer or a postman. For this I can only put a rhetorical question - 'Why should an innocent person who should neven be found guilty anyway leave his fate of guilt or innocence upon the good grace of the Attorney-General?'. If the fact that the Englist Act and Regulations grant immunity to a wide variety of innocent persons so as to eliminate injustice justifies the interpretation that they create an absolute offence, such justification is singularly wanting in the provisions of the Pharmacy and Poisons Ordinance.

50. For these reasons, I am of the opinion that section 23 of the Pharmacy and Poisons Ordinance does not create an absolute offence. Once it is conceded that the appellant had no guilty knowledge, he must be acquitted of the charge. Accordingly, the appeal is allowed, the conviction quashed and the sentence set aside.

Silke J.A.:

51. The Appellant was convicted of being in possession of a Part I Poison in contravention of section 23 of the Pharmacy and Poisons Ordinance CAP 138. He appealed against his conviction; and the sentence of $1,000 fine and, the matter was referred to this Court by Jones J. under the provisions of section 118(1)(d) of the Magistrates Ordinance CAP 227.

52. The facts were agreed and no evidence was called before the Magistrate. The net issue in the Court below was: was the offence an absolute one.

53. On the 18th September 1980 a pharmacy inspector and member of the Medical and Health Department visited the premises of the Hon Wah Medicine Company. In the presence of Mr. Wong Kwong Wah, a partner of the Company and the Appellant, thirteen bottles each containing sixty pills of a medicinal brand "Chuifong Toukuwan Complex" and six bottles each containing sixty pills of another medicinal brand "Chuifong Toukuwan New Formula" were seized. The Appellant admitted the bottles belonged to him. Of the thirteen bottles twelve belonged to one lot and one to another - all the six bottles belonged to one lot.

54. The correct procedures were then carried out and one set of samples were sent to the Government Chemist for analysis. These samples consisted of: two bottles each containing sixty pills of "Chuifong Toukuwan Complex": one bottle containing twenty pills of "Chuifong Toukuwan Complex" and two bottles each containing sixty pills of "Chuifong Toukuwan New Formula."

55. The Government Chemist certified that the samples of the Complex" and of the "New Formula" contained Indomethacin which is a Part I Poison.

56. The Crown accepted: that the Appellant was a retailer having received the lots in question in the normal course of business from the manufacturer distributor, Shun Yuen (Overseas) Trading Company Limited: that the list of ingredients supplied with each bottle of pills showed that the ingredients were either innocent or were herbs listed in the Chinese Herbal Materia Medica and therefore unrestricted - indeed these pills were advertised in a Television Commercial: that the Appellant did not know of or suspect the presence of a Part I Poison in the pills.

57. The Company was not an authorised seller of Part I Poison.

58. It was jointly agreed that the two issues for decision were: first: whether in the circumstances it would amount to possession of Indomethacin on the part of the Appellant: second: whether the offence is an absolute offence.

59. Before the Magistrate the Crown relied on certain passages in a judgment of Addison J. in Tai Muk Kwai trading as Nan Lien Pharmaceutical Company and Shun Yuen (Overseas) Trading Company Limited v. The Queen⁽¹⁾. These passages were obiter as the headnote makes clear and as the Magistrate fully appreciated. The relevant portion came after Addison J. had said at p.16 -

"This finding is sufficient to dispose of this appeal insofar as issues as to mens rea do not arise for determination but it does no harm to set out, in brief, the arguments advanced."

60. Addison J. came to the conclusion, having reviewed the arguments to which he had referred, that possession under section 23 was an absolute offence but found it unnecessary to make a finding.

61. The Magistrate however felt himself bound by the observations of Addison J. saying -

"I took the view that I was so bound albeit that the issue in the case cited was not the same as in the instant case."

and further -

"I entertained no doubt that it was not within my competence or jurisdiction to decide whether Mr. Justice Addison was right or wrong and that the authorities cited by defence counsel were therefore irrelevant."

62. With respect to him I think he was in error in deciding he was so bound. I hasten to add that the obiter of Addison J. should be given full weight and that that which he said might well be a sound guideline in assisting the Magistrate to come to his conclusion but the Magistrate was not bound to follow it.

63. Mr. Bleach, in his submissions before us, concentrated on the issue of whether or not the offence is an absolute one and in so doing suggested that one has to take this course first before considering the question of possession or its quality. I do not accept this. Possession and its multi-faceted forms has bedevilled the law over a considerable period of time but it must not be lost sight of that the offence charged is one of possession. It is necessary to consider what form that possession took, amongst other things, in coming to a conclusion as to whether or not section 23 creates an absolute offence. One cannot regard that latter aspect in isolation. (Lockyer v. Gibb.)⁽²⁾

64. For example it is agreed here that the Appellant had possession, in the sense of custody and control, of the offending articles.

65. It is, amongst other considerations such as the nature of the penalty provided in the Ordinance for violation of the section and the absence or not of presumptions in the Ordinance, a matter to be considered in finding whether or not the Legislature intended the offence to be one of strict liability.

66. I do not forget Mr. Duckett's telling point that unless this offence was one of strict liability it would be virtually impossible to bring home the offence to the possessor in like circumstances as here and that any presumption which might be introduced into the Ordinance could very easily be rebutted. Though as to the latter submission in particular I have reservations.

67. It is of importance to look at the short title of the Ordinance and the provisions of section 23 and to the mischief intended to be avoided.

68. Section 23 reads -

"No person shall have in his possession any poison included in Part I of the Poisons List otherwise than in accordance with the provisions of this ordinance, the proof whereof shall lie upon him."

69. Section 33 of the Ordinance makes contravention of section 23 an offence and section 34 provides a penalty, none being provided for in section 23, that being a fine of $10,000 and imprisonment for twelve months.

70. The title of the Ordinance is:

"To consolidate and amend the law relating to pharmacy and poisons."

71. I think it is important in the context here to appreciate that the majority of the English cases such as Warner⁽³⁾ and Sweet v. Parsley⁽⁴⁾ refer to either the Dangerous Drugs Act 1965 or the Drugs (Prevention of Misuse) Act 1964 and that the mischief with which the Legislature was there concerned is of greater severity - as in our Dangerous Drugs Ordinance - than that of the Ordinance here. But that is not to say that the misuse of pharmaceuticals is a trivial matter.

72. Warner⁽³⁾ is not the easiest of cases to interpret in particular in the light of the dicta in Sweet v. Parsley⁽⁴⁾. Pickering J.A. in Reg. v. Halim Sulman⁽⁵⁾ at p.217 said:

"In the former (Warner) case the House appeared to say that if the accused believed that the contents of the parcel of which he was in possession were perfume and not drugs then although he did not have a reasonable opportunity to ascertain the contents and did not suspect that there was anything wrong therewith, yet because perfume and drugs are different in kind and not merely in quality, he was automatically guilty. This result would appear to stand in conflict with various dicta in Sweet v. Parsley. What is important, we consider, is that Sweet v. Parsley is the later case and that the ultimate result in that case was to correct a massive injustice. The decision in Warner did not result in injustice because the House felt it competent to them to apply the proviso. However, given less damning facts in a case similar to Warner, the result arrived at in that case on the basis of strict liability, would be one of grave injustice."

73. The Court of Appeal in Sulman⁽⁵⁾ had for consideration two apparently conflicting decisions one Mohd. Daraiz v. The Attorney General⁽⁶⁾, the other Koon Pok Man v. The Queen⁽⁷⁾. In Mohd. Daraiz⁽⁶⁾ it had been held that on a charge under s.42(2)(c)(i) of the Immigration Ordinance the possession of a false passport was an absolute offence. In Koon Pok Man,⁽⁷⁾ on a charge under the Dutiable Commodities Ordinance, it was held that the prohibition on the possession of dutiable liquor was not absolute. The Court relied on the dicta in Sweet v. Parsley⁽⁴⁾ and, without fully considering Koon Pok Man⁽⁷⁾, held that in the absence of any clear intention of the Legislature to create an offence of strict liability in section 42(2)(c)(i) of the Immigration Ordinance an offence under that section would require mens rea and said that Mohd. Daraiz⁽⁶⁾ should not be followed.

74. The relevant section of the Immigration Ordinance reads as follows:

shall be guilty of an offence."

75. This subsection was amended in 1980 and 1981 but these amendments do not materially alter the section as it was considered in Sulman⁽⁵⁾.

76. In Warner⁽³⁾ Lord Guest, who delivered one of the principal judgments and who held that the offence contrary to section 1(1) of the Drugs (Prevention of Misuse) Act 1964 was an absolute one, dissented from that which Lord Wilberforce said as to the disproving of the inference that a person who accepted possession of a parcel normally accepted possession of the contents.

77. Lord Guest's dissent was with the greatest respect, to me, logical once the offence of possession was an absolute one. What the House, through Lord Wilberforce, appears to have done is to inject into the law a rebuttable presumption not contained in the Act. This relating to container cases and modifying the strict rule.

78. The section under consideration in the House read:

"...... it shall not be lawful for a person to have in his possession a substance for the time being specified in the Schedule to this Act unless ......"

Wording not wholly dissimilar to that of section 23 of the Pharmacy and Poisons Ordinance.

79. Lord Guest characterised this wording of the Act at p.300 by saying -

"...... I cannot conceive of any words which could make the offence more absolute."

He went on:

"I am not inclined to place much weight on whether there is or is not a presumption that mens rea is a necessary ingredient in a statutory offence, but if there was, the presumption has to some extent been whittled down in recent years (see Harding v. Price [1968] 1 K.B. 695, 701) and in any event the language of Section 1 in my view is sufficient to rebut any such presumption. The very doing of the Act, as has been said, imputes mens rea."

80. Lord Reid dissented as I have said from the strict liability proposition and his was the main speech in Sweet v. Parsley.⁽⁴⁾

81. The Act for consideration of the House then was the Dangerous Drugs Act, 1965, of which section 5 reads:

"If a person (a) being the occupier of any premises permits those premises to be used for the purpose of smoking ...... cannabis resin .... or (b) is concerned in the management of any premises used for any such purpose as aforesaid: he shall be guilty of an offence against this Act."

82. Miss Sweet let out several rooms of a farm house of which she was subtenant. She ceased to live there though she occasionally went there to collect letters and rent. Cannabis resin was found and Miss Sweet was charged with being concerned in the management of premises used for the smoking of cannabis resin. Miss Sweet conceded that the premises had been so used. The Prosecutor conceded that she did not know this. In parenthesis the concessions here bear repeating - the Appellant conceding that he was in possession of the bottles containing pills: the Crown conceding that he did not either know or suspect that included in the ingredients of those pills was a Part I Poison.

83. The House, on appeal from the Divisional Court, held that the offence was not an absolute one. It reinforced the concept of the presumption of mens rea the headnote reading:

"Mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary, and the court ought not to hold that an offence is an absolute offence unless it appears that that must have been the intention of Parliament."

84. Here we are not dealing with the Sherras v. De Rutzen⁽⁸⁾ class of act, that is those which are not criminal in any real sense but are acts which, in the public interest, are prohibited under penalty. This is a truly criminal act. The penalty in the Ordinance and the dangers of the misuse of Part I Poisons are sufficient of themselves to indicate that. It is not, in my view, quasi-criminal.

85. Further I would be by no means content to say, as I understand Mr. Duckett wishes us to say, that minor penalties such as absolute discharge can be imposed in the no knowledge cases. Lord Reid in Warner⁽³⁾ agreed with that which the Privy Council said in Lim Chin Aik⁽⁹⁾ at pp.174, 175 where it disapproved:

"the alternate view that strict liability follows simply from the nature of the subject matter and that persons whose conduct is beyond any criticism can be dealt with by the imposition of a nominal penalty."

86. The passage goes on:

"But though a nominal penalty may be appropriate in an individual case where exceptional licence is called for, their Lordships cannot, with respect, suppose that it is envisaged by the Legislature as a way of dealing with offenders generally. Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, their Lordships consider that, even where the statute is dealing with a grave social evil strict liability is not likely to be intended."

87. Lord Reid in Sweet v. Parsley⁽⁴⁾ did recognise the great difficulties a prosecutor might find himself in were it necessary for him to prove guilty knowledge in many kinds of cases. But he considered there were at least two other possibilities and at p. 150 had this to say:

"Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved he must convince the jury that on the balance of probabilities he is innocent of any criminal intention. ..................... The other method would be in effect to substitute in appropriate class of cases gross negligence for mens rea in the full sense as the mental element necessary to constitute the crime."

88. Neither method has been employed by the Legislature here and if an offence under section 23 were an absolute offence innocent carriers such as policemen who have seized, in the course of other duties, articles containing Part I Poisons and postmen who carried such things for delivery would be caught by the section. Public servants are not exempted from prosecution as one would expect if the Legislature had intended to create an absolute offence. And to say that the Attorney General could exercise his discretion as to whether or not to prosecute is, with respect to Mr. Duckett, no answer.

89. In his argument Mr. Duckett relied on R. v. Woodrow⁽¹⁰⁾ at p.907 which he said decided the whole issue. He went on that later cases have not taken the matter much further though he referred us to them. Woodrow⁽¹⁰⁾ was a dealer in and retailer of tobacco such a person is liable to a fine of £200 - no mean sum in 1846 - for having in his possession adulterated tobacco. Woodrow was found to possess fifty-four and one half pounds of manufactured tobacco which upon subsequent examination was found to have added to and mixed with it four per cent of saccerine matter. It was accepted that the adulteration had been made in the course of manufacture, that Woodrow had purchased the goods as genuine tobacco, that he believed it was genuine and that he had no knowledge or cause to suspect that it was genuine and that he had no knowledge or cause to suspect that it was adulterated with saccerine.

90. The Court of Quarter Sessions dismissed his appeal but stated a case for the opinion of the Court of Exchequer: the question which concerns us being "whether the respondent had been guilty of the offence charged in the information?"

91. Pollock C.B. at p.912 in considering the question raised and having held that

"the party is liable to penalty whether he is or is not aware that the commodity has been adulterated in the manner in which this turns out to be."

went on:

"In reality a prudent man who conducts his business will take care to guard against the injury he complains of and which Mr. Compton says he has a right to complain of, and he would not be exposed to it. If he examines the article he may reject it, and not keep it in his possession: or if he is incompetent to do that he may take a guarantee that shall render the person with whom he is dealing responsible for all the consequences of prosecution."

92. Parke B., in a concurring judgment, said at p.913:

"With respect to the offence itself I have not the least doubt that the ordinary grammatical construction of this clause is a true one. It is very true that in particular instances it may produce mischief, because an innocent man may suffer from his want of care in not examining the tobacco he has received and not taking a warranty; but the public inconvenience would be much greater, if in every case the officers were obliged to prove knowledge. They would be very seldom able to do so. The Legislature have made a stringent provision for the purpose of protecting the revenue and have used very plain words. If a man is in possession of an article as the defendant was in this case and that article falls within the terms mentioned in the statute, there is no question but that the offence is proved. If there is any hardship in the case, it does not rest with those who have only to carry the law into effect to remedy it. There is a provision, referred to by my brother Rolfe, which enables the commissioners to meet such a case."

93. In my judgment Woodrow⁽¹⁰⁾ is not a decision which avails the Crown here. It was a matter of revenue enforcement, it did not carry the possibility of a sentence of imprisonment, else neither the "guarantee" of the Chief Baron nor the "warranty" of Parke B. could be referred to, it was a bulk substance unlike here and there was a statutory provision which enabled, in an exceptional case, the fine to be mitigated. And finally in this more liberal age the interpretation in Sweet v. Parsley⁽⁴⁾ and the dicta therein are much to be preferred.

94. Accepting, as has been conceded by both sides, this not to be a container case in the Warner⁽³⁾ sense, nor an inadvertent possession in the Lockyer v. Gibb⁽²⁾ sense, and having considered the wording of the section, the format of the Ordinance and its stated purpose, disclosed by its provisions taken as a whole, - and in this connection I do not ignore the evidentiary provisions of section 24 which are related to contraventions of section 26 - the mischief which the Legislature seeks to avoid its criminality and the penalties provided, the difficulties in which the Crown might find itself in proving knowledge, the non exclusion from prosecution of public servants, the injustices which might occur and, overriding all of these, the presumption reiterated with firmness in Sweet v. Parsley⁽⁴⁾ that unless expressly removed - and the absence of the word "knowingly" is not sufficient indication of such removal - the Legislature does not intend to exclude mens rea I would hold possession in contravention of section 23 not to be an offence of strict liability. The appeal therefore succeeds, the conviction is quashed, the sentence set aside and the fine, if paid, is to be refunded.

Bewley, J.:

95. This is an appeal against conviction and sentence. The appellant was charged with possession of a Part I poison, contrary to section 23 of the Pharmacy and Poisons Ordinance, Cap. 138. This provides:

"No person shall have in his possession any poison included in Part I of the Poisons List otherwise than in accordance with the provisions of this Ordinance, the proof whereof shall lie upon him."

96. The appellant is a partner in the Hon Wah Medicine Company in Mongkok. The shop was visited by a pharmacy inspector on the 18th September last year, and 19 bottles of pills were seized and sealed. 13 of these bottles contained Chuifong Toukuwan Complex and 6 contained Chuifong Toukuwan New Formula, both of which are Chinese medicines. There were 60 pills in each bottle.

97. Pills from 5 of these bottles were analysed by the Government Chemist and some, but not all, were found to contain a substance called Indomethacin, which is a Part I poison. The company was not an authorized seller of poisons. It was conceded by the Crown, in the Court below, that the appellant was not aware that the pills in question contained Indomethacin.

98. The case came before Mr. Caine on the 23rd June this year, when the appellant pleaded not guilty. The facts were admitted and it was agreed that the issue between the parties was one of law, as to whether i) the appellant was in possession of Indomethacin, and ii) whether the offence in question is an absolute offence.

99. Counsel for the Crown relied upon dicta of Addison J. in TAI Muk-kwai trading as Nan Lien Pharmaceutical Company and Shun Yuen (Overseas) Trading Company Limited v. R.⁽¹⁾. In that case a manufacturer of pills was prosecuted for possession of Indomethacin contrary to S. 23. The case was found on the basis of whether the poison had been deliberately introduced by the appellant, or whether it had evolved through the interaction of herbs. It was a complicated issue of fact, which the learned judge resolved in favour of the prosecution. Having done so, however, he said he would have found, had it been necessary, "that the appellants, assuming them to have been unaware of the presence of Indomethacin within the pills, were nevertheless in possession of them for the purpose of section 23 of the ordinance." He did not go on to say whether he thought the section created an offence of absolute liability, but remarked that he found the observations of Lord Guest in Warner v. Metropolitan Police Commissioner⁽²⁾ cogent and persuasive. Having found that S.1(1) of the Drugs (Prevention of Misuse) Act, 1964, created an absolute offence, Lord Guest said at page 301:

"Last, but by no means least, there must be consideration of the case of evasion of the offence if mens rea is required. The very nature of the drug, namely, small pills, makes secretion easy and detection difficult. If the correct interpretation of section 1 is that the prosecution are required to prove knowledge by the accused of the existence of the substance this will be, in my view, a drug pedlar's charter in which a successful prosecution will be well-nigh impossible in the case of the trafficker who conceals the drugs and on questioning remains silent or at any rate refuses to disclose the origin of the drug."

100. The learned magistrate thought, mistakenly, that he was bound by the opinion of Addison, J., and, without going into the merits of the matter, he found that the offence was one of absolute liability and that the appellant was in possession of Indomethacin within the meaning of section 23.

101. The appeal came before Jones, J., on the 11th September and, at the request of counsel, the learned judge referred it to this Court under section 118(1)(d) of the Magistrates Ordinance.

102. Mr. Bleach, for the appellant, invites the Court to address itself, in the first instance, to the question of whether the section is one of absolute liability. Mr. Duckett, for the Crown, on the other hand, submits that we must consider whether the word 'possession', in this context, involves proof by the Crown of Knowledge of the presence of the prohibited substance. As to this, I am content to adopt the approach of Lord Wilberforce in Warner's Case⁽²⁾ who said at page 432:

"It may be asked whether, in order to constitute possession, some intention or knowledge must be shown in addition to the fact of control, or the question may be whether, in order that the statutory offence may be committed, some guilty intention or knowledge, or mens rea, must be proved. It is obvious that these two questions are related. For if one comes to the conclusion that knowledge is required for possession, then, in proving possession, a sufficient mens rea is likely to have been established, and no second stage is needed. Conversely if one believes that mens rea is necessary in order to constitute an offence, then it cannot be said that mere ignorant control would satisfy the section. In my opinion, rather than split up the section into two separate parts, it should be regarded as a whole and one single question should be asked - what kind of control with what mental element does the Act intend to prohibit?"

103. No authorities on possession of poisons and pharmaceuticals have been brought to our attention, but the concept of possession has given rise to difficulty in other fields, particularly that of dangerous drugs.

104. Warner⁽²⁾ is the leading case on possession of dangerous drugs in England. The police found in the back of the appellant's van 2 cases, one containing scent and the other prohibited drugs, namely amphetamine sulphate tablets. His defence was that he had gone to a cafe, expecting to collect one case of scent, which was to be left there for him by a friend and that he assumed both cases contained scent. He was convicted of unauthorised possession of the drugs.

105. Affirming the decision of the Court of Appeal, which dismissed his appeal, the House of Lords held (Lord Reid dissenting) that, although the statute did not require mens rea as such, a mental element was required to establish the actus reus, which was possession of a dangerous drug. In this the House endorsed the view of the Court of Appeal in Lockyer v. Gibb⁽³⁾, that the prosecution must prove that the defendant knew he had in his possession the articles which transpired to be drugs. But that case also held that it was not essential to prove that the defendant knew that the articles were drugs.

106. The majority in Warner⁽²⁾ were of the opinion that, where the drug is in a container of some kind, the defendant may possess the container and know that it has contents and yet not possess the contents, provided he is completely mistaken as to the nature - and not merely the quality - of the contents, has had no opportunity to ascertain the nature of the contents and does not suspect that there is anything suspicious about them.

107. The majority also held that, if the appellant really had believed on reasonable grounds that the case contained scent, he would have had a good defence. But the proviso was applied in the light of the contradictory replies given by the appellant to the police when asked for an explanation.

108. At page 305, Lord Pearce (one of the majority) had this to say about non-container situations:

"I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word 'possess'. Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty."

109. The subject of mens rea in drug offences came before the House of Lords again, less than a year later, in Sweet v. Parsley⁽⁹⁾. The House was almost identical to that in Warner⁽²⁾, Lord Diplock substituting for Lord Guest. S. 5 of the Dangerous Drugs Act, 1965, made it an offence for a person to be concerned in the management of any premises used for the purpose of smoking cannabis. Cannabis had been smoked by Miss Sweet's tenants, but of this she was unaware. The House held that she had been wrongly convicted, since it had not been proved that it was her purpose that the premises should be used for smoking cannabis.

110. Lord Reid confirmed the view he had expressed in Warner⁽²⁾, that mens rea was presumed, unless clearly excluded. He said at page 225:

"In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say 'must have been', because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted."

111. It should be noted that there had been an outcry in the press at what was regarded as a manifestly unjust conviction, there being no moral blame whatever attaching to Miss Sweet.

112. On this occasion, the other members of the House followed Lord Reid's lead. Lord Pearce said, at page 236, that the absence of the word 'knowingly' was not enough to create absolute liability, but that the

"nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs, and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge."

113. Although Sweet v. Parsley⁽⁹⁾ was not concerned with possession and did not overrule Warner⁽²⁾, its relevance to the present case lies in the changed, more liberal attitude of the House of Lords on the question of mens rea. This change of emphasis was referred to by Pickering, J.A. in Halim Sulman and another v. R.⁽¹⁰⁾, which was a case concerning the possession of unlawfully altered travel documents. He found it difficult, if not impossible, to reconcile the result in Warner⁽²⁾ with the subsequent dicta in Sweet v. Parsley⁽⁹⁾. He said, at page 217:

"What is important, we consider, is that Sweet v. Parsley⁽⁹⁾ is the later case and that the ultimate result in that case was to correct a massive injustice. The decision in Warner⁽²⁾ did not result in injustice because the House felt it competent to them to apply the proviso. However, given less damning facts in a case similar to Warner⁽²⁾, the result arrived at in that case on the basis of strict liability, would be one of grave injustice."

114. The Court's conclusion is found in this passage of the judgment at page 218:

"When the Legislature steps upon ground which involves the liberty of the subject it is treading sacred ground. It is however competent to the Legislature to secularize the ground by the creation of a presumption or of an offence of strict liability and that is a competence of which the Legislature of this territory, no doubt quite appropriately, has availed itself relatively widely, in regard to some of the more serious evils affecting our community such as, to mention only two, dangerous drugs and firearms. It is for the courts to apply the law giving full recognition to such encroachment upon the ordinary requirement of mens rea but it is equally for the courts to repel any invasion of that historic and elementary requirement of a crime unless it be entirely clear that an offence of strict liability has been in fact created. In the case of s. 42(2)(c)(i) of the Immigration Ordinance we find no such clarity of intention."

115. Considerations relevant to the question of possession of travel documents do not necessarily carry the same weight when interpreting an ordinance concerned with drugs or poisons. On the other hand, the force of Pickering, J.A.'s observations must be recognized.

116. We have been referred to several other cases, most of which are fairly recent. The exception is R. v. Woodrow⁽¹⁵⁾. In that case it was held that a tobacco dealer was guilty of an offence for having in his possession adulterated tobacco, although he had purchased it as genuine and had no knowledge, or cause to suspect that it was not so. He could, of course, have discovered its adulterated nature, had he examined it, which, other than by way of analysis, this appellant could not have done. I do not think this case deserves the weight that Mr. Duckett attaches to it.

117. R. v. Fernandez⁽⁶⁾ was a cannabis 'container' case, in which the Court of Appeal could find in Sweet v. Parsley⁽⁹⁾ no indication of a change in the views expressed in Warner⁽²⁾.

118. In R. v. Irving⁽¹⁶⁾ the appellant was convicted of the unauthorised possession of an amphetamine tablet. It was in a bottle in his possession, together with some stomach pills. His defence was that the tablet had been prescribed for his wife and she must have put it in the bottle by accident, when she was refilling it with stomach pills for his use, and that he had no idea it was there. The judge directed that, if Irving⁽¹⁶⁾ was knowingly in possession of the bottle, he was also deemed to be in possession of its contents. It was held, allowing the appeal, that the direction was wrong in the circumstances, which were akin to those where a drug was slipped into a person's pocket, or bag, without his knowledge.

119. There are similarities between this and the present case, but here there are too many noxious pills in the bottles to permit the application of the principle in Lockyer v. Gibb⁽³⁾.

120. In R. v. Marriott⁽⁴⁾, the appellant had in his bedroom a penknife, which, on forensic analysis, was found to have a minute quantity of cannabis resin attached to the tip of the blade. The Court of Appeal held, quashing the conviction, that the prosecution had to prove, not only that the appellant had unauthorised possession of cannabis resin, but also that he had reason to know, at least, that there was some foreign substance on the blade.

121. Then came Searle v. Randolph⁽⁵⁾. One of many cigarette ends found in the defendant's possession was found to contain 3 milligrammes of cannabis. It was held, distinguishing Marriott⁽⁴⁾ and applying Warner⁽²⁾, per Lord Pearce at page 305, that the difference between a cigarette end composed of, or filled wholly with, tobacco and one filled with a substance including cannabis was the same kind of distinction between an aspirin tablet and heroin tablet. The prosecutor was not required to prove knowledge by the defendant that the cigarette end contained cannabis.

122. Thus, if Marriott⁽⁴⁾ had realized there was some foreign substance on his penknife, but did not know what it was, he would presumably also have been guilty. Randolph⁽⁵⁾ knew his butt contained tobacco, but did not know, or have reason to believe, it contained cannabis.

123. In DPP v. Brooks⁽¹⁷⁾, the Privy Council considered the offence of possession of ganja (cannabis) under the Jamaican Dangerous Drugs Law. 19 sacks of ganja were found in the back of a van driven by the respondent, who had tried to run away when caught by the police. It was held, allowing the appeal by the DPP⁽¹⁷⁾, that the only actus reus required to constitute the offence was that the dangerous drug should be physically in the custody, or under the control, of the defendant and the mens rea required was the knowledge, on the part of the defendant, that the thing possessed was the dangerous drug.

124. Lord Diplock said, at page 901:

"The question of what are the mental elements required to constitute a criminal offence of having in one's possession a prohibited substance is a finely balanced one, as Warner's Case⁽²⁾ itself shows. It turns on a consideration not only of the particular provision creating the offence but also of the policy of the Act disclosed by its provisions taken as a whole. The Jamaican legislation is not the same as that which was under consideration by the House of Lords in Warner's Case⁽²⁾.

125. The Privy Council in that case felt it ought to follow an earlier decision by the Jamaican Court of Appeal, R. v. Livingston⁽¹⁸⁾, which had laid down the mens rea required to establish the offence and which had since been treated as authoritative in Jamaica.

126. The Court of Appeal in R. v. Wright⁽⁷⁾, which was a cannabis 'container' case, followed Warner⁽²⁾ and held that, if a person is handed a container and, at the moment when he receives it, does not know or suspect, and has no reason to suspect, that it contains drugs, and if, before he has time to examine the contents, he is told to throw it away and immediately does so, he cannot be said to have been in possession of the drugs that happened to be inside the container. This was so, even though the instruction to throw away the container, which the appellant instantly obeyed, made him suspect that there was something wrong about its contents.

127. It would be straining language to say that a pill is a container. Although the prohibited substance was in some pills and not in others, a medicine retailer cannot be expected to analyse his pills, or even a sample from each bottle. Yet Warner⁽²⁾ was applied in Searle v. Randolph⁽⁵⁾, although it would also be absurd to hold that a cigarette butt is a container, since it is not something one would normally look inside.

128. It is significant, I think, that the passage in Lord Pearce's speech in Warner⁽²⁾ at page 305, which was relied on by the Lord Chief Justice in Searle v. Randolph⁽⁵⁾, was not concerned exclusively with container cases. His lordship thought possession would have been established even if the appellant had believed that the tablets were sweets.

129. This opinion does not appear to have been challenged and, coming as it does from one of the majority speeches, must command the greatest respect. It poses, moreover, precisely the problem that arises in this appeal. The appellant was not completely mistaken as to the nature of the contents of the bottle.

130. If this is the law, it means that the appellant, knowing that the pills were in the bottle, which was under his control, was in possession of the poison, provided, of course, that it is reasonable to compare possession of dangerous drugs in England to possession of Part I poisons in Hong Kong.

131. Persuasive support for the principle involved is to be found in R. v. Bush⁽¹⁹⁾, a decision of the Court of Criminal Appeal of New South Wales. In this case 2 polythene bags containing cannabis, which were concealed in the back of a framed picture, had been sent by parcel post from Bangkok to Sydney and had been collected by the appellant.

132. It was held that the word 'possession' in the section, in the context in which it was found and having regard to the purposes which the legislative provision was intended to effect, meant no more than de facto possession of the narcotic goods concerned; and the mental element involved extended no further than the intention inherent in de facto possession of such goods, namely the intention to have exclusive physical control of some article that was, in fact, narcotic goods, or of some article, or some place, wherein such goods were in fact carried, or contained, or located. It was not inherent in that mental element that an accused should know, or suspect, or have reason to suspect, that an item in his de facto possession was narcotic goods.

133. But the Court felt that the section did not by implication exclude the exculpatory principle, by which the person charged may prove an honest belief, on reasonable grounds, in the existence of circumstances which, if true, would make innocent that conduct with which he is charged. However, this exculpation was encompassed by the terms of the section, which specifically allowed the defence of reasonable excuse, proof of which lay on the defendant.

134. In England the Misuse of Drugs Act, 1971, now provides in S. 28(3)(6)(i) a similar defence, if the defendant proves that he neither believed, nor suspected, nor had reason to suspect, that the substance or product in question was a controlled drug.

135. The defence of reasonable mistake of fact, referred to in Bush⁽¹⁹⁾, has been generally adopted by the High Court of Australia. See Thomas v. R.⁽²⁰⁾. It is based on the principle laid down in R. v. Tolson,⁽²¹⁾, that (per Lord Diplock in Sweet v. Parsley⁽⁹⁾ (supra) at page 246):

"as a general principle of construction of any enactment, which creates a criminal offence that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief held honestly and on reasonable grounds in the existence of facts which, if true, would make the act innocent."

136. Tolson⁽²¹⁾ was also quoted with approval by Lord Reid and Lord Pearce, but, as pointed out by Lord Diplock at page 248, such a 'defence' may be in conflict with the principle in Woolmington v. DPP⁽²²⁾. Thus, as it was not crucial to the decision in Sweet v. Parsley⁽⁹⁾, the House, understandably, failed to grasp this particular nettle. Nor, I think in the circumstances, is it open to this Court to do so, particularly since the matter has not been argued before us.

137. It may be objected that, if the Court were to adopt the view of Lord Pearce in Warner⁽²⁾, which, speaking for myself, I would respectfully seek to do, the effect would be to create an absolute offence, which could not have been in the contemplation of the legislature. This is not entirely correct, as it is necessary to prove knowledge of control of 'the thing'. But Mr. Bleach points out that, in the absence of exemptions for public officers, a police officer would commit an offence if he seized a Part I poison in the mistaken belief that it was heroin. Even were he not prosecuted, it is submitted that, where the maximum punishment is 12 months imprisonment, plus a fine of $10,000, there is no room for the Attorney General's discretion. I have sympathy for this view, but I think, on balance, that it is untenable. As pointed out by Mr. Duckett, this ordinance has nothing to do with the police and one would not expect to find therein any provision relating to police officers. The ordinance is enforced by authorised inspectors appointed under S. 35. On the rare occasion when an accidental infringement by a police officer in the execution of his duty might occur, it is inconceivable that a prosecution would ensue.

138. It is also pointed out that this ordinance came into existence in 1969, nearly a decade after the presumptions in the Dangerous Drugs Ordinance had been introduced. Had the legislature intended an offence of absolute liability, would they not also have incorporated presumptions in Cap. 138, in order that innocent persons should not be convicted?

139. It is, I think, important to distinguish the two ordinances in this respect. While the distribution of Part I poisons may be a social menace and difficult to control, it does not carry the stigma and the very heavy penalties that attach to possession of heroin and opium. Society may be prepared to tolerate the imposition of a relatively light penalty on an offender lacking full knowledge of the facts, while refusing to do so in the case of a man facing a lengthy prison sentence.

140. Likewise with presumptions. It is not an easy task to rebut a presumption under the Dangerous Drugs Ordinance. Heroin, for example, is enormously expensive. It is not enough for a defendant found in possession of a substantial quantity to say: "It is not mine. I really cannot imagine how it came to be in my flat", or "A friend asked me to look after it for him. He told me it was sugar." People just do not behave like this. Too much money is involved and the risk of detection too great. Such a defence, in the great majority of cases, will not be believed.

141. In the case of a Part I poison, on the other hand, similar presumptions would, I think, be relatively easy to rebut. The majority of prosecutions involve vendors, such as the appellant, who would usually be believed if they said they did not know what their medicines contained. The omission of presumptions from the ordinance is, therefore, quite understandable.

142. What persuades me most that this approach is not inconsistent with presumed legislative intention is the difficulty of effective enforcement, if the prosecution in every case had to prove that the defendant realised he was in possession of a prohibited substance. There would be few successful prosecutions and the purpose of the ordinance would be defeated.

143. We are in the area of potential danger to public health, which traditionally has encouraged the legislature to create offences of absolute liability. The maximum penalty here is higher, it is true, than the majority of such offences. Yet, in the case of possession of arms and ammunition, the Court has held that a person who possessed a firearm that he mistakenly believed to be an antique was guilty of an offence, although the section specifically exempted antique firearms possessed as a curiosity or ornament. R. v. Howells⁽²³⁾.

144. It was stated by Kennedy L.J. in Hobbs v. Winchester Corporation⁽²⁴⁾ at page 483:

"... I think that the policy of the Act (Public Health Act, 1875) is this: that if a man chooses for profit to engage in a business which involves the offering for sale of that which may be deadly or injurious to health he must take that risk, and that it is not a sufficient defence for anyone who chooses to embark on such a business to say 'I could not have discovered the disease unless I had an analyst on the premises.'"

145. The offence was exposing for sale unsound meat intended for human consumption, the penalty for which was £20 or 3 months imprisonment.

146. My only anxiety in this matter is whether there is anything that a retailer can effectively do to comply with such a strict rule. Lord Evershed referred to this in LIM Chin-aik v. The Queen⁽¹⁴⁾ at page 174 when he said:

"But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."

147. In Sweet v. Parsley⁽⁹⁾, at page 246-7, Lord Diplock, when discussing Tolson's Case⁽²¹⁾, said:

"Where penal provisions are of general application to the conduct of ordinary citizens in the course of their everyday life, the presumption is that the standard of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law of duty of care. But where the subject-matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals, in which citizens have a choice whether they participate or not, the court may feel driven to infer an intention of Parliament to impose, by penal sanctions, a higher duty of care on those who choose to participate and to place on them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. But such an inference is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation."

148. There was no effective action that the defendant in this case could have taken, once he had accepted the pills from the wholesaler, or manufacturer: any suggestion of analysis is unrealistic. If so, is it right to interpret the section in this way? I think the answer is that, while the retailer will always be at risk, it lies within his power to be careful from whom he purchases his stock and thus reduce the likelihood of infringing the section.

It seems to me that, bearing in mind the dictum of Lord Diplock (supra), such a risk is more acceptable than the risk that would be run by the public in consuming pills containing a Part I poison, were it incumbent on the prosecution to prove mens rea in each case. I believe that this was also the intention of the legislature.

149. The prohibition is aimed at distributors and retailers of medicines. They are in the business for profit. Let them take care.

150. It is with reluctance that I respectfully come to a different conclusion to that of the other members of this Court, but, for the reasons given above, I would hold that all the prosecution in this case was required to prove was that the appellant was aware that he had control of the pills. On the admitted facts, therefore, he was properly convicted and I would dismiss the appeal against conviction.

Representation:

Mr. John Bleach, (Kwan & Kwan) for appellant

Mr. A.P. Duckett, Senior Asst. Crown Prosecutor, for respondent

(1) Criminal Appeal No. 1129 of 1979

(2) 1969 2 AC 256

(3) 1967 2 Q.B. 243

(4) 1971 1 W.L.R. 187

(5) 1972 Crim. L. R. 779

(6) 1970 Crim. L. R. 277

(7) (1976) 62 Cr.App.R. 169

(8) (1977) 65 Cr.App.R. 67

(1) C.A. 1129 of 1979

(2) (1967) 2 Q.B. 243

(3) (1969) 2 A.C. 256

(4) (1969) 53 Cr.App.R. 221: (1970) A.C. 132

(5) (1977) H.K.L.R. 214

(6) (1976) H.K.L.R. 386

(7) (1975) H.K.L.R. 271

(8) (1895) 1 Q.B. 918

(9) (1963) A.C. 160

(10) (1846) 15 M. & W. 404

(16) 1970 C.L.R. 642

(17) 1974 2 W.L.R. 899

(18) 1952 6 J.L.R. 95

(19) 1975 5 A.L.R. 387

(20) 1937 59 C.L.R. 279

(21) 1889 23 QBJ 168

(22) 1935 A.C. 462

(23) 1977 2 W.L.R. 716

(24) 1910 2 KB 471