Yim Po-lin v. The Queen

CACC000796/1982

Headnote

Charge of possession of a dangerous drug for the purpose of unlawful trafficking. It is essential that the jury be given a clear and accurate direction as to knowledge and that the question of knowledge be left to the jury to decide.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date: 5 November 1982

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JUDGMENT

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Barker, J.A.:

1. In this case the appellant appeals against her conviction on a charge of possessing a dangerous drug for the purpose of unlawful trafficking therein.

2. When she was arrested on the 14th day of January i982 at the Hong Kong Macau Ferry Terminal, Hong Kong, she had with her a polythene paper sealed with brown tape which itself was in a floral patterned paper packet, which in turn was in a black plastic shopping bag inside her handbag. When the polythene paper was opened it was found to contain a white substance, which on analysis and examination proved to be 1.099 kilogrammes of a mixture containing 0.991 kilogramme of esters of morphine.

3. The appellant, who gave evidence, admitted possession of the polythene paper, but denied that she knew that it contained a dangerous drug. She went so far as to say that she suspected it contained something unlawful, something, for instance, like poisons or medicines, but she went no further.

4. It was in these circumstances vital that the jury should receive a clear and accurate direction on the meaning of knowledge. They did not.

5. When the judge came to deal with this matter in his summing up, he said as follows :

"If she had actual custody of them, that is possession within the meaning of the Dangerous Drugs Ordinance, provided of course that she was aware of the drugs, that she knew about them; otherwise she would not be in possession.

She would have to know that they were dangerous drugs even though she did not know the precise nature of the dangerous drugs or the precise quantity. Whether it was heroin or opium, it would not matter, as long as she knew that they were dangerous drugs and she does not have to know exactly how much. So it is actual custody with knowledge of the existence of the drugs and that they were dangerous drugs."

6. So far, so good. But then the judge continued:

"Also, of course, if she strongly suspected that this package contained dangerous drugs and deliberately did nothing about it, did not find out, did not open the packet when she could have done, then this is the equivalent of actual knowledge and it would be sufficient knowledge to enable you to find that she was in possession of the drugs, that is the deliberate turning of a blind eye."

And later, he said:

"Supposing you find that it (i.e. her - written statement) is true, you are entitled to ask yourself, 'Well, I wonder if this was all planned?  Has the defendant deliberately turned a blind eye to the fact that these were drugs?'

In that case, as I have said before, possession would be proved because this would amount to sufficient knowledge if she had strongly suspected that they were drugs but did not take the matter any further." The underlining is mine.

7. In Reg. v. Griffiths^(l), the appellant was charged with handling stolen goods, namely a pair of candlesticks. His defence was that although he might have had suspicions about the candlesticks, these suspicions were not related to any criminal offence and that he did not know they were stolen. The Recorder in his summing up told the jury:

"that they could convict if they were satisfied that the appellant was in one of three states of mind as to the stolen nature of the candlestick, (i) that he knew, (ii) that he believed, or (iii) that he suspected and deliberately chose not to ask any questions as to the circumstances."

8. James, L.J. said at pale 16,

"The passage in the summing -up upon which Mr. Keane particularly relies is, 'there is a third possibility which you may think is a matter of common sense although it is a matter of good law, and that is this, that a man suspects that goods are stolen and then deliberately shuts his eyes to the circumstances and doesn't want to know. You may have in those circumstances a man with real suspicion - not grounds for suspicion, but really suspecting - who really closes his eyes to the circumstances - a man in law in those circumstances knows or believes the goods were stolen.' Taken in isolation, those words are capable of being construed as directing the jury that as a matter of law they must find that the appellant knew or believed the goods to be stolen if they found that he suspected they were stolen and he deliberately shut his eyes to the circumstances. Such a direction would be wrong in that it removes from the jury's consideration the essential ingredient which it is for the jury to decide."

9. And later at page 18 James, L.J. said:

"To direct the jury that the offence is committed if the defendant, suspecting that the goods were stolen, deliberately shut his eyes to the circumstances as an alternative to knowing or believing the goods were stolen is a misdirection. To direct the jury that, in common sense and in law, they may find that the defendant knew or believed the goods to be stolen because he deliberately closed his eyes to the circumstances is a perfectly proper direction."

10. And in Reg. v. Grainge(2), Eveleigh, J. said at page 5:

"Knowledge might be inferred from evidence that the accused wilfully shut his eyes to facts from which ordinary men would realise that the goods were stolen, but the inference is a process of reasoning based on the circumstances of the case and not a presumption of law."

11. I respectfully agree with and adopt the foregoing statements of the law.

12. In the present case, for the judge to say, as he did," if she strongly suspected that this package contained dangerous drugs and deliberately did nothing about it ...... then this is the equivalent of actual know1edge" is to do exactly what Griffiths^(l) and Grainge⁽²⁾ said should not be done. It is withdrawing from the jury's consideration the essential ingredient which it eras for them to decide: it is treating suspicion coupled with deliberate shutting of the eyes to the circumstances as an alternative to knowledge and doing so as a matter of or a presumption of law.

13. And the later direction that "possession would be proved because this would amount to sufficient knowledge if she had strongly suspected that they were drugs but did not take the matter any further" is tainted with exactly the same vice.

14. For these reasons the appeal is allowed and the conviction quashed. There was, however ample evidence upon which the jury, properly directed, could have convicted the appellant. There dill be a retrial.

(1)    (1974) 60, Cr. App, R. 14

(1)    (1974) 60 Cr. App. R. 14

(2)    (1974) 59 Cr. App. R. 3

Representation:

Mr. J. Hingorani (H.M. So & Co.) for the Appellant.

Mr. M.A. McMahon for Crown/Respondent.