Lee Lai-fong v. The Queen

CACC000853/1979

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Coram: Roberts, C.J., Pickering, J.A. & Leonard J.

Date of Judgment: 11 March 1980

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JUDGMENT

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Leonard, J.:

1. The appellant and her husband were charged with having jointly in their possession at Room 1321, Block 19, Kwai Shing Estate, on the 10th of May 1979 dangerous drugs, namely 913.4 grammes of a mixture containing 274.8 grammes of salts of esters of morphine. Her husband pleaded guilty.

2. On the afternoon of that day a party of police went to that address, led by a Detective Inspector Mutch. They knocked on the door. When this was not immediately opened, Inspector Mutch kicked it in. Inside he saw the appellant carrying a brown envelope (which was unsealed but tied with a piece of string) towards the balcony, where she thrust it out. It was recovered and had the heroin in it. She made a cautioned statement in which she said:

"My husband told me to throw those items out onto the street if strangers knocked at the door. I asked him what those items were. He said women should not care about men's affairs."

She gave evidence to the effect that she did not know what was in the envelope and that her husband had told her to mind her own business when she asked him.

3. The judge in summing-up took what we must regard with hindsight as an ill-advised course. He decided not to direct the jury on the statutory presumptions on the basis that "they would be more confusing than anything else". He dealt with the burden of proof on the basis that it remained on the prosecution throughout and that the burden on the prosecution was proof beyond reasonable doubt. If the Crown relies on statutory presumptions, as it did in this case, we consider that the wiser course is to direct the jury with particularity on the presumptions relied on, warning them that the facts giving rise to them must be proved beyond reasonable doubt but that they may be rebutted on the balance of probability.

4. The judge, having pointed out that the sole question for their decision was whether or not the appellant knew what was in the envelope, went on to say:

"But I do say this as a matter of law to you: she does not have to have first-hand knowledge that what was in her hands were dangerous drugs. If you feel that she was in the position where she ought to have investigated the contents of the parcel, and if she did not so investigate it amounted to recklessness on her part, recklessness to the extent of not caring whether that parcel contained dangerous drugs or not, then the law imputes that knowledge to her."

Later in the summing-up he said almost the same thing in the following words:

"If you find in all those circumstances that you feel that there was a duty on her, that she was put on enquiry as to the contents of the parcel in respect of all those facts before you and she did not so investigate, and you feel that that non-investigation was really recklessness on her part to the extent of not caring what the contents were, that they might have been drugs, then the law imputes knowledge on her part."

5. Counsel brought to our attention various authorities from jurisdictions where statutory presumptions are not to be found, including Canada, but we do not think that it is necessary for us to deal with the Canadian authorities. In Reg. v. Warner⁽¹⁾ Lord Reid had this to say:

"          The object of this legislation is to penalise possession of certain drugs. So if mens rea has not been excluded what would be required would be the knowledge of the accused that he had prohibited drugs in his possession; it would be no defence, though it would be a mitigation, that he did not intend that they should be used improperly. And it is a commonplace that, if the accused had a suspicion but deliberately shut his eyes, the court or jury is well entitled to hold him guilty. Further it would be pedantic to hold that it must be shown that the accused knew precisely which drug he had in his possession." (emphasis added)

6. We consider that the trial judge went too far when he said "then the law imputes knowledge on her part". This was tantamount to a direction to the jury that, if satisfied that (a) there was a duty on her; (b) she was put on inquiry as to the contents of the parcel (c) she did not investigate and (d) non-investigation was not only recklessness on her part but recklessness to the extent of not caring what the contents were, they must convict.

7. Apart from the statutory presumptions, the law is not so stringent. The jury were not obliged in law to convict. It was open to them to do so. We are therefore of the opinion that there was a technical misdirection.

8. In KWAN Ping-bong and Another v. The Queen⁽²⁾ Lord Diplock said:

"The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

9. We have come to the conclusion that any reasonable jury, if properly directed, could have made on the evidence before them one inference and one inference only, that is, that the appellant must have known the contents of the parcel. We are therefore of the opinion that this case is a proper one for the application of the proviso. The appeal is dismissed.

Representation:

Mr. Ronald Mayne (Director of Legal Aid) assigned for appellant.

Mr. Longley, counsel for Crown/respondent.

(1) (1969) 2 A.C. 256 at p. 279.

(2) (1979) H.K.L.R. 1