Yu Kwan v. The Queen
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CACC000785/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 785 OF 1968 -----------------
Coram: Blair-Kerr, Mills-Owens & Huggins, JJ. Date of Judgment: 6 March 1969 ----------------- JUDGMENT ----------------- Huggins,J: 1. The appellant appeals against his conviction upon a charge of unlawful possession of "traces of diacetylmorphine hydrochloride". The facts found by the learned magistrate can be briefly stated. The appellant was seen smoking a cigarette in the street. He was walking in a peculiar manner which appears to have aroused the suspicions of a corporal of police. The corporal arrested the appellant and seized the cigarette. The cigarette was later sent to the Government Chemist, who has certified that he found traces of the drug. 2. An argument was addressed to us upon the wording of the chemist's certificate. The certificate reads:
It was contended that upon the grammatical and true construction of these words the magistrate was wrong in saying the chemist had certified there were traces of drugs in the cigarette: he had certified only that there were traces in the sealed packet and there was therefore nothing to connect the appellant with the possession of those traces. At best, counsel submitted, the certificate was equivocal and the appellant should be given the benefit of the doubt which must inevitably arise. The chemist has, in truth, departed from the form prescribed in the Second Schedule to the Dangerous Drugs Ordinance by stating part of the contents of the sealed packet at a point other than that intended by the Legislature. The statutory form says (in part):
It will be seen, therefore, that the figure and words "1 cigarette end" have been inserted in the space intended for "the name or description of officer". However, if the form had been followed precisely it is arguable that the chemist need not have mentioned the cigarette end at all but merely have certified that the sealed packet contained traces of diacetylmorphine hydrochloride. It is a statutory form and its adoption cannot be challenged as insufficient. The Legislature obviously intended that it was reasonable to assume the police would not place a substance which they seized from an accused person into a packet which contained drugs from another source, otherwise a certificate in the statutory form could never suffice without evidence that the packet was previously devoid of drugs. In our view that is a reasonable assumption to make in the absence of some contra-indication and it follows that even upon counsel's construction of the certificate there was evidence which would have entitled the learned magistrate to find that the cigarette contained traces of diacetylmorphine hydrochloride. We are not, however, persuaded that that is the correct construction of the certificate. In any event, for reasons which will appear later, we thought it desirable to call the chemist for further examination and it is now beyond argument that the traces of the drug were in fact found in the cigarette. 3. The main point in the case is whether there is any minimum quantity of drugs which must be found in the possession of an accused person before he can be convicted under s.10 of the Dangerous Drugs Ordinance of unlawful possession. The occasion of the appeal has been the publication of the decision of the English Court of Appeal in Reg. v. Worsell in The Times Newspaper of 28th January 1969. That case has not been fully reported but we have had the advantage of receiving a copy of the transcript of the judgment from the Registrar of the Criminal Appeal Office. In that case the indictment was amended to allege that the appellant had unlawfully in his possession "a certain drug, to wit, a few droplets of diamorphine". The evidence was that the droplets were in a small tube. They were invisible to the naked eye, could only be discerned under a microscope and could not be measured or poured out. Lord Justice Salmon said:
The court added, however, that as the appellant had said to the police, when told his co-defendants had admitted taking drugs, that he himself had "had a fix", the presence of the tube, which clearly had held the drug used for the fix, would have been conclusive evidence against him of possession of a drug at some time prior to the moment when the police arrested him. 4. It is significant that under the English Regulations it is an absolute offence to be in possession of a dangerous drug without authority: Reg. v. Warner(2). The English court was therefore at pains to emphasise the need to show that the accused person was in truth in possession of a drug. If the quantity was so small that he could not take it or peddle it the grave social evil the legislation sought to remedy would not be reduced by a conviction and the Legislature could not have intended possession of such a small quantity to be an offence. In Hong Kong the offence created by s.10 of the Ordinance is not an absolute offence: if it were, there would have been no need for s.16, under which the court may in certain circumstances presume that the accused is in possession of a substance which has been found to be a drug and that he knows the nature of the drug. There can be no doubt that the appellant in the present case could have been charged and convicted of unlawful possession of the drugs of which the traces were the remnant upon the basis of the dicta in Reg. v. Worsell(1). As in that case, however, the court is faced with the narrower issue whether a charge of unlawful possession of the traces themselves can be sustained. 5. Counsel for the appellant relied principally upon the authority of Reg. v. Arne Ling(3), decided in the Alberta Supreme Court. There a microscopic amount of drugs was found in lint taken from one of the accused's pockets and it was held that under the Opium and Narcotic Drug Act the amount of drugs must have some value for commercial or medicinal purposes or for use by an addict: measurability was not the governing factor. Mr. Justice Boyd McBride said that the Act was obviously "designed to stamp out trafficking in and having possession of the deadly habit-forming drugs in the schedule, in the hope of eventually wiping out drug addiction". That equally applies in Hong Kong but we do not think that this aim of the legislation is more likely to be achieved by inferring a limitation which is not expressed. The Appellate Division in Reg. v. Quigley(4) rejected the limitation, but the real basis of the decision in that case appears to have been that "the only reasonable conclusion under the circumstances in which (the drugs) were found is that each of these quantities is the remnant or residue of a larger amount". The British Columbia Court of Appeal in Reg. v. McLeod(5) also declined to follow Reg. v. Arne Ling(3). Justice of Appeal Bird and, we think, Chief Justice Sloan thought it was enough that the Act did not prescribe that there should be in the accused's possession a usable quantity of the drug, but again the majority (Justice of Appeal Bird adopting this as a second ground for allowing the appeal against dismissal of the charge) held that the accused should be convicted of possession of the larger quantity of drugs of which the drops found were the remnant. These Canadian cases are therefore not as helpful as they might at first appear and it must be borne in mind that they were reached at a time when the unlawful possession of dangerous drugs was considered to be an absolute offence, a view which was held to be wrong in Reg. v. Beaver(6). It was on this ground that in Reg. v. Quigley(4) the court rejected an argument that there could be no possession of a quantity so small that it could not be seen and could, as a result, not be the subject matter of animus domini. As the offence created by s.10 of the Hong Kong Ordinance is not an absolute offence we think it is essential that the accused should be proved to be aware at least of the presence of the substance which is the prohibited drug. 6. Following close upon the heels of Reg. v. Worsell(1) came Reg. v. Graham(7). There scrapings were taken from pockets of the accused and were found to contain "very small" quantities of cannabis resin. It seems to be implicit in the report that the quantities were visible to the naked eye as well as capable of measurement in milligrammes. Reg. v. Worsell(1) was therefore distinguished and the conviction was upheld. 7. In the case before us the certificate referred to "traces" and we were of opinion that it was desirable to ascertain exactly what the chemist intended to convey by that word. There appeared to be three possibilities: (1) that the drug was present in quantities sufficient to be visible though not capable of use for any purpose for which the drug is normally used; (2) that the drug was present but in quantities visible only under a microscope or possibly detectable without being visible at all; and (3) that the drug was no longer actually present but that its earlier presence could be detected by reason of some reaction it had had with other substances which remained. (An example of such a case was Hambleton v. Gallinan(8). There the accused was found to have in his urine traces of a powder which could only be present if he had earlier consumed the prohibited drug to which the charge related. It was held that since the character of the drug had been so latered and no further use could be made of it the accused could not be said to be in possession of the prohibited drug). The Oxford Dictionary suggested that in chemistry the word "traces" had the connotation "a quantity so minute as to be inferred but not actually measured" but we thought it safer to have this confirmed. We have now had the advantage of hearing Mr. Edgley and he has told us that the drug was actually present. The amount could have been measured but such measurement would have been a lengthy undertaking. The test he carried out was a qualitative test, for which a chromatographic plate was used. However, from experience he was able to say from the intensity of the colour produced on the plate that the quantity present here exceeded 2 microgrammes and did not exceed 5 milligrammes. That amount, as we understand it, would not be visible to the naked eye. 8. The evidence given before us leaves no doubt that the drug was actually present and present in a measurable quantity. Equally the amount was such that the drug could not be used for any purpose for which the drug is normally used. 9. We see no reason to hold that there is any limit to the amount of a dangerous drug which must be present before there can be a conviction for possession. Where the amount is so small as to be invisible to the naked eye the burden on the prosecution remains the same, to prove that the accused was in possession of the drug. Apart from any statutory presumption he was in possession if he knew that the substance was there and that it was a drug which was in fact prohibited (whether or not he knew of the prohibition), though he need not have known the name or properties of the drug. It is no defence if, having knowingly had a larger quantity of a drug, the accused smokes the drug or attempts otherwise to dispose of it but unknown to him he retains possession of an invisible amount, for the traces form part of the larger quantity and the offence was committed not at the time of the finding of the traces but at the time of the attempted disposal. The more difficult question remains, therefore, whether on the evidence in this case the appellant knew at any time that the quantity of the drug which was eventually found was in his possession. The traces found were the result of sublimation as the burning drug passed through the tobacco. The chemist was unable, as we understood, to say how much diacetylmorphine hydrochloride must originally have been present in the cigarette in order to produce the residue which he found. It follows that it is not possible to say that the drug was formerly present in such a large quantity that the smoker must have been aware of its presence. The learned magistrate did not refer to s.16 of the Ordinance nor make any finding whether the appellant had discharged the burden of proof which arose upon an application of the presumption. It is therefore to be assumed that he was satisfied the appellant knew of the presence and nature of the drug. From the facts that he referred to the appellant's indecision in formulating a clear line of defence and that he rejected both the stories which the appellant put forward it is apparent that the learned magistrate came to the conclusion that the appellant was lying. It was then open to the magistrate to conclude that the lie about dropping one cigarette and picking up another was indicative of the appellant's guilty mind. In our view there was evidence sufficient to justify a finding of possession of the drugs found. 10. The conviction could, we think, be sustained on the further ground that by s.16 the appellant was presumed to be in possession of the drugs found and to know their nature. The learned magistrate found that they were "contained" in the cigarette. As we have indicated, the certificate of the Government Chemist on its true construction supported such a finding. Although the learned magistrate did not expressly say that the onus was on the appellant to rebut the presumption that arose and that the appellant had failed to discharge the onus, we think that in the light of his rejection of the appellant's evidence it is impossible for the appellant to contend that he did discharge the onus. 11. For these reasons the appeal must be dismissed. We find it unnecessary to express any view upon the vexed question whether the maxim de minimis non curat lex applies in criminal cases and, if so, to what extent. 6th March, 1969. Representation: Patrick Yu (Stephen Lo & Co.) assigned for Appellant. Addison C.C. for Crown/Respondent. (1) The Times Newspaper of 28th January 1969. (2) 1968 2 All E.R. 356 (3) (1954) 109 Canadian Criminal Cases 306. (4) (1954) 111 Canadian Criminal Cases 81 (5) (1955) 111 Canadian Criminal Cases 137 (6) (1957) 118 Canadian Criminal Cases 129 (7) (1969) The Times, January 28th. (8) 1968 2 All E.R. 943 |