Kwan Ping-pong and Another v. The Queen

CACC000765/1976

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 5th May, 1977.

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JUDGMENT

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Pickering, J.A.:

1. The two Appellants were convicted of trafficking in a dangerous drug on the 23rd January, 1976 at Kai Tak Airport, the drug being almost 6,000 grammes of a salt of morphine. They appeal against their convictions.

2. In the court below the Crown relied heavily upon certain documents found in the possession of the first Appellant as attracting against both Appellants, the presumptions of possession and knowledge contained in section 47 of the Dangerous Drugs Ordinance, Cap.134. Likewise upon the appeal, argument centred upon the effect of possession of those documents.

3. After hearing the arguments upon the appeal we became doubtful as to whether the documents and the presumptions allegedly raised by their possession did in fact deserve the importance which had up to that point been accorded to them and whether there was not in fact evidence which must necessarily have led the jury to the conclusion of guilt without reference to the documents. We invited, and were indebted to counsel for, further argument upon this matter.

4. Briefly the facts were that the two Appellants, who are jade merchants, went on the 23rd January, 1976, to Kai Tak Airport to collect some six crates of jadestones which, the first Appellant had been informed by the airline's local agent, had arrived in Hong Kong on the previous night. The consignee of the freight was in fact the first Appellant and when he presented himself at the office of the agent for the airline, he was given an air waybill and a Commerce and Industry Department receipt for six crates and was required to go to a particular building where the crates had been stored by the Revenue authorities and where an inspection of their contents was to take place. At that storehouse the second Appellant identified himself to a Revenue Officer as the partner of the first and said that both had been to Bangkok where they had purchased the jadestones contained in the crates. Upon the crates being opened two of the stones were found to contain the dangerous drug.

5. The Appellants each made statements to the effect that the consignment contained two more jadestones than they had ordered and that these must have been placed in the crates without their knowledge by a certain Fong Shek Mo, a Bangkok citizen who had arranged the despatch of the consignment on their behalf.

6. As it seems to this Court there has been unnecessary emphasis upon the air waybill and the Commerce and Industry Department receipt and upon the question of whether or not those documents attract any presumption of possession. Moreover, we can be satisfied that if the case had been fought differently, that is without reliance upon the documents, no other evidence could have been produced by the Appellants than was produced.

7. The emphasis, by virtue of the Crown's reliance upon the documents, was upon possession. But what the Appellants were charged with was not possession but trafficking. Before they could be convicted of that offence the jury had to be satisfied beyond reasonable doubt that the Appellants were aware of the existence of the two extra stones and of the nature of the contents thereof.

8. For the purpose of this appeal we will assume without deciding that the judge was in error in directing the jury that the presumption could arise and will assume, in consequence, that there was before the jury inadmissible evidence that the Appellants knew of the presence of the drugs.

9. In evidence the second Appellant claimed that in Thailand Mr. Fong had asked him if he, Mr. Fong, might include in the consignment two additional stones of his own and that the question had never been answered except with the comment that this would be better left until after Chinese New Year. It was suggested that Mr. Fong had nevertheless included in the consignment the two extra stones containing the dangerous drugs. It was further the evidence of the second Appellant that the first Appellant had heard Mr. Fong's request. The first Appellant denied, in his evidence, that he had heard this.

10. Now if the evidence of the two Appellants, or even that of the second Appellant, in this regard had been believed by the jury, that would have been the end of the case and acquittals must have resulted for it would then have been apparent that no matter what the effect of the documents and any presumptions attaching or not attaching to possession of them, the Appellants had no knowledge of the existence of the drugs so that even if a presumption to the contrary had arisen, it was rebutted.

11. But that the story about Fong was not believed is apparent from the very fact that the jury convicted. And it is apparent from the conviction of the first Appellant that his protestations of never having heard Fong's request to include two stones of his own in the consignment, rang hollow in the jury's ears in the light of his admission that he heard other parts of the same conversation between Fong, the second Appellant and himself around the same table. Had the Appellants said no more than that they had no knowledge of the existence of the drugs, it may be doubted what course the jury would have taken but the effect of the Fong story was to redound against the Appellants. Once that story had been introduced and disbelieved, the only reasonable inference for the jury was that the Appellants had themselves caused the importation of the drugs and so had knowledge of them. In our view no reasonable jury could have reached any other conclusion.

12. In short, the presumption was relied upon by the Crown as evidence of knowledge of the existence of the drugs in the consignment. The Fong story was evidence put forward as tending to negative such knowledge. Although thus related those two pieces of evidence were independent. If the jury thought the Fong story was true or possibly true they must have acquitted. The Fong story was of such a character that the contrary evidence of knowledge supplied by the presumption could not have affected their conclusion as to the truth or otherwise of the Fong story. The jury must in fact have disbelieved the Fong story, because they convicted.

13. The Appellants were charged with trafficking in the drug on 23rd January, 1976. What did they do on that date which amounted to trafficking? "Trafficking" is defined to include "dealing in or with the dangerous drug" and the two went to the airport on that date in order to take delivery of the drugs that is to "deal with" them. The visit to the airport was part and parcel of a transaction which began in Thailand and which was intended to continue until the drugs had been collected from Kai Tak and eventually disposed of. Each step in that prematurely terminated transaction represented a dealing with dangerous drugs, that is trafficking.

14. Mr. Bunting, for the first Appellant, argued that since the effect of the documents had been put to the jury there had been a misdirection on the burden of proof in that the jury had been instructed that if the presumptions applied it was then for the Appellants to rebut them on the balance of probabilities whereas if the charge was to be looked at stripped of the documents and the presumptions it remained for the prosecution to prove the whole of the case by evidence and that beyond reasonable doubt. Considered in that manner, the argument continued, proof beyond reasonable doubt had not been established at the end of the prosecution case and the first Appellant's evidence had not added anything to that case to render it overwhelming.

15. Whilst agreeing that if the case is looked at stripped of the documents and the presumptions there was a misdirection on the burden of proof, it does not appear to this Court that this resulted in any miscarriage of justice; as to Mr. Bunting's second point, we would disagree that the first Appellant's evidence added nothing to the prosecution case. It added a defence which was disbelieved and to the effect of that disbelief we will revert.

16. With reference to counsel's further argument that had the case been presented to them otherwise than on the basis of possible presumptions, the jury might have said: "We do not disbelieve the story, it might be true and therefore we will acquit", the plain fact is that from the jury's verdict it is entirely apparent that they did disbelieve the story about Fong.

17. For the second Appellant, Mr. Sanguinetti argued that it was only on the basis of the presumptions that the Crown could point to his client. But that is not so and that there was evidence of the second Appellant's involvement independently of the documents said to give rise to the presumptions, is apparent from the evidence of the Revenue Inspector who was present when the Appellants opened the crates. That evidence was to the effect that the second Appellant confirmed to him that he was the partner of the first Appellant and that they had been together to Thailand to buy the stones contained in the six cases. Mr. Sanguinetti further contended that for this Court to apply the "proviso" in regard to the misdirection on the burden of proof, and thereby to allow the convictions to stand, would be tantamount to saying that guilty knowledge was not an ingredient of the offence of trafficking in dangerous drugs. With respect, that argument cannot be sustained upon the facts of this case. Nor, as it seems to us, does the case of the Commissioners of Customs and Excise v. Harz⁽¹⁾ establish the wide proposition for which Mr. Sanguinetti strove, that the proviso should not be applied where inadmissible evidence has been allowed in. Whether it can properly be said that in the present case any inadmissible evidence was allowed in, may be doubtful since the two documents would clearly have been admissible whether or not the Crown had relied upon them to establish the presumptions. However that may be, the reason for the refusal in Harz to apply the proviso was that it could not be said with confidence that had there been a hearing in that case without the inadmissible evidence, a reasonable jury, properly directed, would without doubt have convicted. It is otherwise in the present case where we can be satisfied that on the whole of the facts, and with a direction which made no reference to the presumptions, the only proper verdict must have been one of guilty.

18. We have already observed that had the Appellants said no more than that they had no knowledge of the existence of the drugs, it may be doubted what course the jury might have taken. But at the end of the day the jury were entitled, indeed required, to look at the whole of the evidence. The effect here was that the actus reus of going to the airfield to claim jadestones which the Appellants owned in partnership and two of which were found to contain dangerous drugs, coupled with a defence which was disbelieved by the jury, pointed unerringly to mens rea. We are far from suggesting that that must be so in every case, for each case must depend upon its own facts. In the present case, once the story about Fong had been rejected by the jury, any conclusion that this extremely valuable commodity had been placed in the consignment by some unknown person without the knowledge or consent of the owners of that consignment, would have, as its corollary, the virtual certainty that the unknown person would have in fact been abandoning his valuable drugs. Any such conclusion, involving an unknown third party, would have been fanciful. Had the case been presented to the jury otherwise than on the basis of the presumptions, then once the Fong story had been rejected, the jury would have been driven to the verdict which in fact they reached.

19. We are satisfied that there has been no miscarriage of justice and, applying the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap. 221, we dismiss the application.

20. Mr. Bunting comments that the application of the proviso deprives his client of the right to a jury. In the last analysis that is the effect but there is nothing novel about it: that has been the effect of the application of the proviso ever since it was first introduced in England in 1907 and it invariably operates to the detriment of an appellant yet also in the interests of justice, which are rightly said to include not only the interests of the accused but those of the community. In more recent years a converse situation has developed in which the verdict of a jury may be ignored to the considerable advantage of an appellant and, understandably, we never hear defence counsel complaining of that. The majority of criminal appeals now reaching this Court and which reached its predecessor the Full Court in that Court's later years include or included, as a ground of appeal, that the verdict was unsafe and unsatisfactory. And if the Court has an unease or "lurking doubt" as to the propriety of the conviction, it will allow the appeal and reverse the jury's decision solely for that reason. Thus the effect of statute in the present century has been to deprive the verdict of a jury of some of that, by no means total, degree of finality which it previously enjoyed. That is a deprivation sanctioned by the Legislature and it operates sometimes to the advantage, sometimes to the disadvantage of an appellant, but it is not a legitimate ground for complaint - either by an appellant when the proviso is applied or by the community when a verdict of guilty is set aside as being somehow intangibly "unsafe and unsatisfactory".

Representation:

M. Bunting (Lau, Chan & Ko) for 1st appellant

A.J.J. Sanguinetti (W.K. Poon & Co.) for 2nd appellant

P.N. Duncan for Crown/respondent.

(1) [1967] 1 All E.R. 177