HKSAR v. Lam Tsang Wah

CACC000738/1996

IN THE COURT OF APPEAL

1996, No. 738

(Criminal)

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Coram: Hon Power V-P, Mortimer and Mayo, JJ.A. in Court

Date of hearing: 4 July 1997

Date of judgment: 4 July 1997

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant was convicted of trafficking in dangerous drugs after a trial before Yeung J and a jury. He now seeks leave to appeal against this conviction.

2. The facts are relatively simple. It was the prosecution case that having received certain information four police officers attended at Yeung Uk Road, Tsuen Wan at 9pm in the evening of 18 April 1996. After waiting some time they saw a car had arrived in the vicinity. The applicant and a lady got out of the car. The applicant was carrying a handbag. One of the officers approached the applicant and revealed his identity. The applicant turned and tried to get away. He also tried to get rid of the handbag he was carrying. A scuffle ensued and after the intervention of another police officer the applicant was subdued. The handbag was retrieved and searched. A red plastic bag was found which contained a white plastic bag inside which were 12 plastic bags containing the dangerous drugs referred to in the charge. The total of the dangerous drugs found in the bags was 321.53 grams of a mixture containing 63.87 grams of heroin hydrochloride. After the search of the handbag was completed the applicant was cautioned. In response he said: "Ah Sir, I am employed to deliver goods - It has nothing to do with the woman. Let her go".

3. The applicant and the lady who was with him both gave evidence at the trial below. The applicant did not deny that he had been in physical possession of the handbag which had contained the dangerous drugs. It was his case that he had no knowledge of the dangerous drugs having been in the handbag. He denied that he had attempted to resist arrest or that there had been any struggle with the police officers.

4. Both he and Madam Sin, the lady who had been accompanied him at the time in question gave particulars of the way they had spent the day.

5. At the time they had been cohabiting. Madam Sin had a son by another man named Chan Chung Chi. There was an ongoing dispute between Madam Sin and Mr Chan over the custody of their son. Arrangements had been made for them to have dinner together later that evening at a restaurant in the vicinity. However Mr Chan had contacted them earlier in the evening over their portable telephone and they had picked him up in the car. He had sat in the back of the car where the applicant left his handbag while he was driving his car. Mr Chan had subsequently left the car. The only explanation the applicant could think of to account for the presence of the dangerous drugs in the handbag was that either Mr Chan or the police had planted the dangerous drugs on him.

6. The applicant had also given evidence that he was not a drug addict and did not consume dangerous drugs.

7. There is one perfected ground of appeal. It is framed as follows:

"The conviction of the appellant on a count of trafficking in dangerous drugs was unsafe and unsatisfactory in that the learned judge misdirected the jury on the standard of proof of guilt by implying (at pages 11Q and 15A of his charge) that the test for them to apply on the issue of trafficking or alternatively of mere possession of the drugs in question was that of likelihood."

8. To consider this complaint properly it is necessary to have regard to the context of the passages complained of.

9. The relevant direction starts at 10P and concludes at 12D:

" The accused himself did not dispute that this dangerous drug was in fact found inside the handbag that he was carrying at the time of his arrest, but he said he did not know that his handbag contained the dangerous drug in question. He denied knowing anything about it. It is a matter for you but you may think the real issue in this case is whether the accused was aware, at the material time, this handbag that he was carrying contained the dangerous drug in question and whether he was aware of its nature. And if you are satisfied in regard to those elements you would then consider the further question of whether he had possession of the drug in question for the purpose of unlawful trafficking.

It is only when you are satisfied beyond reasonable doubt of all these elements, that you can find the accused guilty of the charge of trafficking in a dangerous drug. If you are satisfied beyond reasonable doubt not only that the accused was knowingly carrying the handbag with the dangerous drug inside, and that he was aware of its nature, but not satisfied with the other element, that is for the purpose of unlawful trafficking, then you can only find him guilty of the lesser offence of simple possession of dangerous drug. But it is a matter for you, but in the light of the quantity, and in the light of his own admission, that he is not a drug taker, and in the light of the value of the drugs that scenario perhaps is not too likely, but that is a matter for you to decide.

If, however, you are not satisfied beyond a reasonable doubt with the element of knowledge, if you are not satisfied that the accused was aware that the handbag that he was carrying contained the dangerous drug in question and that he was therefore not aware of its nature, if you cannot even be sure of that, then it will be your duty to acquit the defendant altogether of the charge."

10. It is not necessary to cite the whole of the passage complained of at p15. What Yeung J was attempting to do was to relate the directions he was giving to some of the undisputed facts of the case. He was making reference to the applicant's evidence that he was not a drug addict and was reminding the jury of the evidence concerning the quantity of dangerous drugs which had been found in the handbag.

11. What this evidence undoubtedly indicated was that if the jury was satisfied at the appropriate level that the applicant was in possession of the dangerous drugs it was unlikely that they were going to be consumed by the applicant personally.

12. To take matters beyond any doubt at all the judge gave further directions near the conclusion of his summing up in these terms:

" Ultimately, it is a question of fact for you to decide. Are you sure that the accused was aware of the presence of the dangerous drugs in the handbag that he was carrying? Are you sure that he was aware of its nature? If you are sure that he was aware of the presence of the dangerous drugs and its nature, he would be in possession of them, you would then have to consider if he intended to use the dangerous drugs for the purpose of unlawful trafficking in the manner as I have earlier told you. If you are able to resolve these issues then you should have no difficulty in reaching a verdict in this particular case."

13. The jury received full and helpful directions from the judge. This conviction was in no way unsafe or unsatisfactory and this application is refused.

Representation:

Mr I.G. Cross SC and W.S. Cheung (DPP) for Respondent

Mr Christopher Coghlan (M/S William Au & Co.) for Applicant