Wong Yin Yu v. The Queen

CACC000792/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 792 OF 1971

-----------------

-----------------

Coram: Huggins, McMullin and Pickering, JJ.

Date of Judgment: 21st January, 1972.

-----------------

JUDGMENT

-----------------

Huggins, J.:

1. This is an appeal against conviction and sentence. The Appellant was indicted for possession of a dangerous drug for the purpose of unlawful trafficking and upon her conviction was sentenced to seven years' imprisonment. The learned trial judge gave a certificate granting leave to appeal against conviction and sentence. The ground upon which he gave his certificate in respect of the conviction was "whether, in the absence of the Crown being able to rely upon the statutory presumption arising under s.46 [of the Dangerous Drugs Ordinance], mere possession of a substantial quantity of dangerous drugs together with possession of the two-sets of scales bearing traces of dangerous drugs, can be said to be capable of constituting proof beyond reasonable doubt that the person so found in such possession had possession for the purposes of unlawful trafficking."

2. The evidence called by the Prosecution was to the effect that a police party, consisting of an inspector, a corporal, a woman police constable and a police constable, raided a residential flat in Kowloon. They were admitted through the outside grille of the building by a young boy. They found the door of the flat ajar, but, the boy having given a shout which appeared to be intended as a warning, the inspector put his shoulder against the door to prevent its being closed and at the same time said "Policeman". Somebody tried to push him away and someone else tried to push the door shut. However the police party forced its way into the flat and found four persons inside - the Appellant, her husband, her daughter and a friend of the daughter. The husband was originally arrested also in connection with this offence but upon the Appellant's pleading guilty in the magistrate's court (in circumstances which I shall have to mention later), no evidence was offered against him. Upon a search a bunch of keys was found in the master bedroom. One of these fitted a locked bedroom, inside which were found two boxes containing suspected dangerous drugs, two weighing scales, some sacks, some wrapping paper and some assorted polythene bags. There was also found a piece of paper bearing a large number of figures but in the absence of any evidence as to the significance of these figures we do not think it has any relevance. The Appellant admitted that the keys belonged to her. On a chemical examination the Government Chemist certified that there were 34 blocks and one packet, containing in all 39.5 kilogrammes of a mixture containing 34.1 kilogrammes of a salt of morphine; that there was one bag containing pieces of paper containing less than 0.1 gramme of a salt of morphine; that there were two sets of weighing scale, each containing less than 0.1 gramme of a salt of morphine and that there was a box containing three gunny sacks, each containing less than 0.1 gramme of a salt of morphine.

3. The Appellant's story was that she had sub-let the room in which the drugs were found to a man called Poon: that early in May (not in June, as the learned judge said in his summing-up) she happened to walk into the room, which could not be locked from the inside, while Poon was in it and that she found him weighing blocks which she recognised as dangerous drugs, she having seen similar blocks portrayed on television; that she told him to leave the premises but had eventually been persuaded to allow him to continue his tenancy in return for a payment of $2,000; that subsequently goods had been taken out from the room on two occasions and that she still had the key of Mr. Poon's room so that she could give access to the room to any person who came on his behalf to remove the rest of his belongings.

4. At this point it is necessary to recount the history of these proceedings. As I have indicated, the Appellant pleaded guilty before the magistrate, and she was thereupon committed for sentence. When the case came before the judge of trial he was in some doubt whether the facts related to him by counsel for the Crown indicated an offence under s.7 of the Dangerous Drugs Ordinance rather than an offence under s.4, of unlawful possession. The case was accordingly remitted to the magistrate to continue the committal proceedings, but before the magistrate the Appellant again pleaded guilty to possession for the purpose of unlawful trafficking. However, in view of what had happened previously the learned magistrate very properly refused to accept the plea and continued the inquiry as directed. Upon the inquiry he committed the Appellant for trial. When the case again came before the judge of trial, counsel for the Appellant invited the Court to have his client rearraigned. He indicated that the reasons for this course was that his client wished to plead guilty to the lesser offence of unlawful possession under s.4. In complying with this request the learned judge must have been under the impression that, despite the Crown's previous refusal to accept a plea to the lesser offence, there had been some communication between counsel which justified counsel for the defence in thinking that a plea to the lesser offence would now be acceptable. In the event the Appellant again indicated that she was prepared to plead guilty to unlawful possession but denied possession for the purpose of unlawful trafficking. Counsel for the Crown stated that this plea was not acceptable and the trial proceeded. However, before counsel for the Crown opened his case the learned judge intervened to indicate that, as he understood it, the Appellant had admitted the unlawful possession of the dangerous drugs particularised in the indictment and that the only issue to be decided by the jury was whether her purpose was trafficking. The precise words which had been used by the Appellant were

"I admit to the possession".

Neither the Appellant nor her counsel suggested that the learned judge misunderstood the position nor was any objection raised when in the course of his opening to the jury counsel for the Crown said

"The accused, as you have already heard, has admitted that she was in possession of the drugs ......".

When the Appellant gave evidence the following exchange took place between her and her own counsel:

In his closing address counsel for the Appellant said:

"          Now, you will remember that at the very onset of this case the accused person has in fact, out of her own mouth, pleaded guilty to possession. She is considered guilty of possession by virtue of the fact that she was the tenant and more or less in control of the drugs at the material date of the police raid. We are not concerned with that. The only issue which is now before you, members of the jury, is whether or not on the material date on which the raid took place, whether she was in possession of dangerous drugs for the purpose of trafficking. That is the issue."

and again

5. On the face of it the Appellant made the clearest possible admission, which, by virtue of s.65C of the Criminal Procedure Ordinance, would be binding unless withdrawn with the leave of the court. However, in the course of her own evidence the Appellant had denied having seen the drugs and it has been suggested upon the appeal that thereby she put her possession of the drugs once more in issue. That cannot be right. It was no doubt open to counsel, if he thought fit upon hearing that evidence given in cross-examination, to ask leave to withdraw the admission, but he did not do so: he may well have thought that the chances of obtaining leave to withdraw the admission were slight and that no advantage was to be gained even if it were given. Be that as it may, we are fully satisfied that there was an admission and that the whole trial proceeded from start to finish on the basis of that admission. There can be no criticism of the learned trial judge on this score and it is far too late to expect this Court to interfere so as to allow the Appellant to take a point which is inconsistent with the stand she has taken from the time she first pleaded guilty in the magistrate's court.

6. It was necessary to deal with this matter at this stage because, in seeking to answer the question raised by the certificate of the learned judge, we think we must have regard to the circumstances of this case and not attempt to answer the question in vacuo. Thus we are not concerned with any, unspecified, "substantial quantity" of drugs but with a mixture containing 34.1 kilogrammes of a salt of morphine. Section 46 of the Dangerous Drugs Ordinance has recently been amended but the amendments are not material for our purposes. That section has at all material times provided that any person who is proved or presumed to have had in his possession more than certain stated quantities of various dangerous drugs shall, until the contrary is proved be presumed to have had such dangerous drug in his possession for the purpose of trafficking therein. Possession of one half gramme of a salt of morphine was enough to bring the presumption into operation. It may well be that any quantity in excess of the minima listed in the section (or, indeed, some quantity less than those minima) could properly be described as "substantial", but we certainly would not say that it was enough to prove possession of a bottle bearing the proper label of a retail pharmacist and containing 20 tablets of codeine for it to be said that possession for the purpose of unlawful trafficking was proved beyond reasonable doubt in the absence of any presumption. One must obviously have regard to the nature of the drug, the quantity, the circumstances in which it is found to have been in the possession of the person accused and any explanation given by him or the lack of any explanation.

7. In the present case the drug was a salt of morphine in the form of blocks measuring (very approximately) 5 1/2" x 4 1/2" x 3". Altogether there were 34 such blocks. They bore numbers which were obviously intended for identification of the blocks. The scales were not fine chemical balances but coarse scales of the kind usually found in kitchens and suitable for weighing quantities from about half an ounce to probably no more than about five pounds. They were, therefore, suitable for weighing drugs in the form in which these drugs were found. Although, as we have seen, traceable amounts of dangerous drugs were found on the scales the evidence does not reveal on what part of the scales they were found. I say "traceable amounts" although the certificate states "less than 0.1 gramme" and by "traceable amounts" I mean a quantity so minute as to be identified but not actually measured. Without knowing what is the smallest quantity which is traceable such a certificate can only be treated as if it indicated a very small quantity indeed, such as might be deposited in the form of dust and, as we do not know where the traces were found, we think little weight can be attached to the presence of the drug on the scales. Nevertheless the presence of two scales in a room when no other purpose for them than the weighing of the drugs was apparent is indicative of their being intended for the weighing of drugs. On the other hand, we think no assistance can be obtained upon the issue which the jury had to decide from the alleged obstruction of the police when they entered the flat.

8. It has been contended on behalf of the Appellant that trafficking necessarily has a commercial flavour and that even "dealing with" dangerous drugs, which is that part of the definition of "trafficking" which is relied upon by the Crown here, has a similar connotation. We think that that argument cannot be right. We accept that "dealing in" necessarily has the connotation which is contended for (HUI Shu-tam v. Reg.⁽¹⁾) but "dealing with", as indicated in that case, is not necessarily the same thing. What amounts to a "dealing with" dangerous drugs is not easy of definition but in a particular case it will generally be comparatively simple to say whether there has been a dealing with drugs or not. We agree with Mr. Litton that the offence of possession of dangerous drugs for the purpose of unlawful trafficking is not necessarily committed by every person who is guilty of unlawful possession: if it were, there would be no necessity for creating a distinct offence. It follows that a person who, having taken unlawful possession of dangerous drugs, has no intention other than to retain them indefinitely is not guilty of possession for the purpose of unlawful trafficking. Even if he intends to handle them from time to time in order to clean the room or to gain access to something which is obstruted by them, he does not thereby become guilty of the more serious offence. We agree that something more must be shown than the sort of handling which is inseparable from possession. However, a jury is entitled to have regard to the realities of life and, in the absence of any explanation, to assume that a person who has possession of a very large quantity of drugs does not intend to keep it as a collector's item. We cannot agree that a jury is not entitled, in the absence of evidence as to the precise value of a quantity of dangerous drugs, to take cognizance of the notorious fact that salts of morphine can be sold illicitly at a very high price. Where the quantity of drugs is large enough (as it clearly is in this case) the jury can assume that it is to be disposed of to others. Such disposal will amount to a "dealing in" if the possessor is party to a sale or similar transaction but only to "dealing with" if it is not. In either event the purpose for which the goods are possessed is "trafficking".

9. Accordingly we think the question posed in the certificate of the learned trial judge must, in the circumstances of the present case, be answered "Yes".

10. The Appellant has filed what purports to be "Grounds of Appeal". In so far as this document refers to the question posed in the certificate of the trial judge it is superfluous. In so far as it goes beyond that certificate we think it was not open to the Appellant to file it. However, with the consent of counsel for the Crown we treat this document as an application for leave to appeal on grounds other than those certified by the judge and we have treated this as the hearing of the appeal.

11. It is contended that even though there was evidence upon which the jury could find that the purpose of the Appellant's unlawful possession was trafficking nevertheless the learned judge failed to leave to the jury the question whether that was the purpose for which she was in possession and, indeed, directed them that if they disbelieved her explanation they must convict of the more serious offence. The learned judge said:

"          For my part, I would entertain some doubt - if you accept her story on this issue - as to whether you could properly find that Poon at that time, on that isolated occasion when she went into that room, was dealing with dangerous drugs. It is perfectly true that he had - and again I am always going on the assumption that you accept her story or are satisfied that it is reasonably true - it is perfectly true that Poon had scales beside him and that he had a block on those scales and a couple of blocks beside him. But whether it could be said that he at that time was dealing with dangerous drugs: whether it could be said that she knew at that time that he was a dealer in, or with, dangerous drugs is really a matter for you; and I think it depends entirely on what view you take of her evidence as to whether she, at that time, knew that he was dealing with dangerous drugs, because if you are not satisfied as to that, it seems to me that it would be very difficult for you to find, on the basis of her story, that she knew he was trafficking in dangerous drugs and therefore to find that at the time the police entered into these premises she was in possession of those dangerous drugs, with that knowledge. Because there can be no doubt about it that she was in possession; but that she was in possession of the dangerous drugs for the purpose of unlawful trafficking therein, whether by herself or whether through or by Mr. Poon, is a further consideration. I hope I have made that clear to you but, as I have said, it seems to me that the real issue in this case is whether you accept and believe her explanation that she has put before you as to the room having been rented out to a Mr. Poon."

At the end of his summing-up he further said:

"If, at the end of the day, having heard the whole of the evidence, you feel that her story - although you feel doubtful about it - if you feel it may reasonably be true and it arouses doubts in your mind, then you should, as I say, give her the benefit of those doubts and find her guilty on the lesser charge or simple possession of dangerous drugs. On the other hand, if you are satisfied, upon the evidence that you have heard - the evidence called by the prosecution and the testimony which she herself has given in the witness box - that her story is a tissue of lies and that there never was a Mr. Poon and that she herself was in possession of those drugs in that room, and in exclusive possession of those drugs, then I am confident that you will not shirk from your duty of convicting her upon the more serious charge. The question is one wholly of credibility; it is a question of fact and it is for you, as judges of fact, to arrive at your conclusion."

Counsel submits that this amounted to a direction that as a matter of law the evidence referred to in the learned trial judge's certificate was not only "capable" of being proof beyond reasonable doubt but must be regarded as proof beyond reasonable doubt. Counsel says that however strong the evidence might be it was still for the jury and not for the judge to find the facts.

12. The importance of this matter is enhanced by the fact that we know the jury disbelieved the Appellant's explanation. After they had returned their verdict the following exchange took place:

Counsel for the Appellant says that we should disregard that answer but counsel for the Crown, while citing authorities which, he says, suggest some judicial conflict on the point whether questions may be put to a jury after it has returned its verdict, submits that once a question has been put and answered it would be wrong to ignore the answer. In Warner⁽²⁾ the Chairman of Quarter Sessions had invited the jury to retire a second time and consider whether the accused knew he had the drugs which were found in the back of his van, without giving them any prior direction on the onus of proof. The Court of Appeal did not condemn the procedure but expressed the view that the Chairman had indicated what was his own view on the question, apart from any assistance from the jury, and further said that it was difficult to see how he could have come to any other conclusion on the evidence: it therefore did not matter whether the procedure adopted was right or wrong. The Court did however say at p.443

"          It may well be ....... that once a jury has brought in a verdict of Guilty or Not Guilty, they have performed their function and are entitled to be discharged; and that they are under no obligation to answer any further questions which the judge may put to them, although it is common practice in murder trials for the judge to do that in order to discover what the reason for the verdict of manslaughter was."

We think that may have been worded somewhat more widely than was justified. There is no doubt that where a verdict of manslaughter is returned after the Defence have raised the defence of diminished responsibility "the judge may, and generally should, then ask [the jury] whether their verdict is based on diminished responsibility or on the other ground or both": Reg v. Matheson⁽³⁾. We have always understood that to be an exception to the general rule expressed in Larkin⁽⁴⁾, which was itself a case where on a charge of murder the jury had returned a verdict of manslaughter:

"But it must be understood that this court deprecates questions being put to a jury upon the meaning of the verdict which they have returned. If the verdict is absolutely inconsistent, proper questions may be put by a judge to invite the jury to explain what they mean, but where a verdict has been returned which is perfectly plain and unambiguous, it is most undesirable that the jury should be asked any further questions about it at all".

That passage was cited in KWOK Yau-shing v. Reg.⁽⁵⁾ where Rigby, J. giving the judgment of this Court said that the Court was unaware of the existence of any practice "in cases of murder" generally for the judge to put further questions in order to discover what the verdict was. In Reg. v. Smith⁽⁶⁾ the Court of Appeal is reported as having said:

"          If a judge for the purpose of assessing what sentence was appropriate wished to know in what capacity the defendant had been convicted he could put questions to the jury in a way similar to certain cases of manslaughter. It was hoped, however, that such cases would be rare in view of the risk of confusion".

We are content to reiterate that statement of principle and we are satisfied that, where a question has been asked and has been answered in a way which leaves no room for doubt as to the basis of a verdict, it would be wrong not to give full weight to the answer.

13. The position is, therefore, that we know the jury entirely disbelieved that the "Mr. Poon" over existed. This has two effects. First, it adds significance to the direction that the jury must convict if satisfied that the Appellant was telling lies about this Mr. Poon: that was a wrong direction and, having been told that the jury were satisfied the Appellant was telling lies, we know that the direction was relevant to the jury's verdict, whereas if they had not been so satisfied it would not have been relevant to this verdict. On the other hand, it shows that in weighing the evidence indicative of the purpose of trafficking there had to be considered the fact that the Appellant had told lies.

14. In our view there was a misdirection but we have no hesitation in saying that, once the story about Mr. Poon had been rejected, on the evidence no reasonable jury,properly directed, could have come to a conclusion other than that the Appellant was in possession for the purpose of trafficking and we apply the proviso to s.81(2) of the Criminal Procedure Ordinance.

15. A number of other points was taken but they all assumed that no admission had been made of the unlawful possession of the drugs. We have already indicated that in our view there was a very clear admission, which was binding upon the Appellant. Consequently there is no substance in these other points and we say no more about them.

16. Counsel submits that the sentence of 7 years' imprisonment was certainly at the top of the bracket which could reasonably be considered appropriate for this offence. He emphasises the family circumstances of the Appellant, who is a mother of five children, four of whom (ranging from 14 to 18 years of age) resided with her in Hong Kong. Her husband normally lives with his kit fat wife in the New Territories. No doubt this is a heavy sentence but we have said time and again that those who are in any way involved in this nefarious traffic will receive condign punishment, however exemplary their past conduct. We see no reason to interfere with the sentence in this case.

17. The applications are dismissed.

21st January, 1972.

Representation:

Mr. Litton, Q.C. 4 Mr. Willis (Ho & Wong) for Appellant.

M. Lucas for Respondent.

(1) 1965 H.K.L.R. 341

(2) (1967) 51 Cr. App. R. 437

(3) 1958 1 W.L.R. 474, 480

(4) (1942) 29 Cr. App. R. 18, 23

(5) 1967 H.K.L.R. 664

(6) (No. 3) 1968 Crim. L. R. 375