Mcdonald Maceon Irving v. The Queen

CACC000870/1982

Criminal law - dangerous drugs - Possession for the purpose of trafficking - issue whether drugs "in transit" withdrawn from jury - Appellant had told Customs officer on arrival that bag in which they were found contained coffee which he had bought and was taking back to Australia - jury's verdict involved finding that Appellant knew bag contained drugs - issue whether he intended to take them out of Hong Kong should nevertheless have been left to jury.

Dates of hearing: 21st December, 1982

16th February, 1983

Miss C. Remedios (Fairbairn & Kwok) for Appellant.

Osborne for Crown/Respondent.

BETWEEN

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

Dates of hearing: 21st December, 1982, 16th February, 1983

Date of Judgment: 16th February 1983

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This appeal raises a short point which the record before us does not show to have been brought to the attention of the trial judge.

2. The Appellant was a flight steward employed by an airline. His schedule brought him to Hong Kong, where he should have remained for a few hours before continuing to Australia. On his arrival at Kai Tak Airport a Customs Officer found in his luggage a bag which contained a quantity of cannabis. The Appellant said that the bag contained coffee which he was taking back to Australia. Also in his luggage was a similar bag which did contain coffee and tea. He was indicted for possession of dangerous drugs for the purpose of unlawful trafficking the quantity being sufficient to raise a presumption of trafficking once possession was proved, and he was convicted as charged. His defence was that some one had insinuated the drugs into his luggage without his knowledge or consent.

3. It is now submitted on his behalf that the learned judge was wrong not to leave to   the jury the question whether the drugs were "in transit", for, by definition, there could be no "trafficking" in drugs which were in transit: see Mayer v Reg. (1977) H.K.L.R. 536. The issue we have to decide is thus whether there was evidence upon which the jury could, with a proper direction, have been satisfied on a balance of probabilities that the drugs were in transit and, consequently, not in the Appellant's possession "for the purpose of unlawful trafficking". Miss Remedios submits that there was sufficient evidence and that the issue should have been left to the jury. Mr. Osborne, for the Crown, contends that the evidence was such that it left the possibilities equally balanced, so that a jury which found that the Appellant had discharged the onus of proving, on a balance of probabilities, that the drugs were in transit would have been perverse.

4. It is a nice point and one upon which we are not unanimous. However, the majority takes the view that the Appellant's evidence that he believed the bag contained coffee, which he had bought and was taking back to Australia, was in reality a combination of two assertions, (1) that he was taking the bag and its contents back to Australia and (2) that he believed that the contents were coffee. That the jury obviously disbelieved him as to the second matter did not necessarily show that it would not have believed him as to the first had the issue been left to it. A jury is always entitled to reject one part of a witness's evidence and to believe another part. However, the minority view, which was that argued for by the Crown, was that the division of` the defence into two separate components was artificial and unrealistic in the circumstances. of the case and that the jury could not be expected to dissect the evidence so clinically: accordingly the judge was entitled to consider the overall effect of this evidence and to hold that the jury could not reasonably find, on a balance of probabilities, that the drugs were in transit.

5. We recognise that the jury might well have concluded that, if it disbelieved the Appellant as to his knowledge of the contents of the bag, it could not safely decide that the Appellant was more likely to be intending to take the bag (and its contents) to Australia than to be intending to dispose of them in Hong Kong. Nevertheless that was his evidence and it was not, in all the circumstances, evidence which was totally incapable of belief. The issue should have been left to the jury.

6. Counsel for the Appellant has conceded that the verdict necessarily involves a finding that the Appellant was in possession of the drugs and that a conviction for an offence of simple possession under s.8 can properly be substituted for the verdict returned by the jury. We quash the conviction for possession for the purpose of unlawful trafficking and substitute a verdict of guilty of unlawful possession of dangerous drugs otherwise than for trafficking.

16th February 1983.

Representation:

Miss C. Remedios (Fairbairn & Kwok) for Appellant.

Osborne for Crown/Respondent.