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Koon Pok-man v. The Queen

Case No.
Court
Date03 Jan 1975
Judge—
Case Document
100%

CACC000990A/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 990 OF 1974

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BETWEEN    
  KOON Pok-man Appellant
  and  
  THE QUEEN Respondent

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Coram: Li, J.

Date of Judgment: 3rd January, 1975

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JUDGMENT

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1. The appellant is convicted of the offence of Possession of Dutiable Goods. He was charged with having in his possession on the 28th of May this year one bottle of 'Johnny Walker' Red Label, otherwise than in accordance with the provisions of the Dutiable Commodities Ordinance, Chapter 109.

2. The facts of the case are not in dispute. They are simple and straightforward. On the 28th of May, three senior officers of the Preventive Service in the Department of Commerce and Industry went to the home of the appellant, who was also a Preventive Officer employed in the said Department, for the search of dutiable liquor. On arrival, all the liquors contained in a cupboard were taken out for inspection and out of some fifty odd miniature bottles of liquor and a few other bottles of liquor, one bottle of Red Label 'Johnny Walker' Whisky was discovered with 'HKDNP', meaning 'Hong Kong Duty Mot Paid' or 'Non Paid' printed on its label. He was charged with the possession of this bottle. The learned Magistrate had considered the case carefully and reduced the issue in a very succinct way into one question. He said: "Can it be said that the Defendant was in possession of the dutiable whisky?" There is no doubt that the bottle of whisky was found in the appellant's home of which he was the tenant. There is also the presumption in Section 40 of the Dutiable Commodities Ordinance to the effect that:

"In all proceedings under this Ordnance and in all proceedings for the recovery of any duties imposed by or under this Ordinance, it shall be presumed until the contrary is proved -

  (a) that any goods to which this Ordinance applies are dutiable goods;  
  (b) that dutiable goods on any premises are in the possession of the licensee, tenant, lessee, occupier or person in charge of such premises."  

3. The evidence in rebuttal of such presumption was given by the defendant, his wife and the friend who offered this bottle to him. The evidence, which had not been shaken, was that the friend offered a parcel of two bottles of liquor to the appellant's wife with some candies one day. The wife unwrapped it, put the bottles into the spirit cupboard and told the defendant two or three days later that his friend had given him two bottles of liquor, or something to that effect.

4. In the case stated, learned Magistrate said "Whilst it is true that to constitute possession, knowledge of possession is essential. "Later he went on to say:

            "..... All the Defendant has said on this important matter is that whilst he admits possession he did not appreciate that the bottle of whisky was dutiable until Superintendent Kerswill drew it to his attention during the search of the Defendant's quarters.  
            It must follow from this that the Defendant has not in the end result rebutted the presumption contained in Section 40(b) of Chapter 109. Even if the Defendant's wife received the bottle there was, in my view, constructive possession and in any event the Defendant's wife has told the Court that she drew her husband's attention to this particular bottle of whisky subsequently. Mr. Iu says that this is a storm in ..... "a" ..... teacup and I think that he is probably right, but I do not follow Mr. Iu's posed question 'When did the Defendant examine the bottle? Does it really matter when? When considered in the light of the presumption? On the subject of the Defendant having 15 years service in the Preventive Service I would have thought that this would have made him doubly vigilant when receiving gifts from anyone. I recognise that the Defendant had a well stocked liquor cabinet and I do not doubt that the Defendant's wife took care of it but still there is the presumption staring us in the face. Although Mr. Iu told me that the Defendant had been interdicted I must not let this factor influence me in this judgment and I have disregarded it in assessing the evidence in this case. Even if I accept Mr. Iu's contention that the defendant did not realise that duty on this particular bottle of whisky had not been paid - that in my view is only a mitigating factor before sentence and cannot be argued against conviction again because of the ever present presumption referred to earlier here."  

5. Larned Counsel for the appellant contends that the learned Magistrate has misdirected himself as to the meaning of possession which clearly requires two elements, namely the physical act of possession, control or custody, and the mental element of knowing what he possessed. Although the appellant was aware he was in possession of a bottle of whisky, he never realised that duty had not been paid and, therefore, he had no knowledge that he was in possession of a bottle of dutiable whisky. As such, the mental element was lacking and, therefore, it cannot be said that he was in possession of a bottle of dutiable whisky. That, I believe, is the sum total of the point on this appeal.

6. On the other hand, learned Counsel for the Crown submit that the prohibition laid down in the Dutiable Commodities Ordinance is very similar to the English Act entitled Drugs (Prevention of Misuse) Act, 1964 which provides an absolute prohibition. As such, the learned Magistrate was quite right in following the principle laid down in the case of Regina v. Warner reported in 1969, 2, Appeal Cases, 256. It is said in the headnote in that case that what is essential is the knowledge of possession, rather than knowledge of the thing possessed, or knowledge of the nature and quality of the thing possessed. Once it is proved that the person knows he is in possession then it does not matter what he possessed and if the thing he possesses turns out to be a commodity which is absolutely prohibited, then he is guilty of possession under the said Act. That, I must observe, is a case that was decided on the special facts of the case, and also on the interpretation by the House of Lords that it is the intention of Parliament to provide an absolute prohibition. This is verified by a very short passage that appeared in the judgment of Lord Pearce at page 308. He said:

            In the present case you may think that the difference between scent and tablets is a sufficient difference in kind to entitle the accused to an acquittal if on the whole of the evidence it appears that he may have genuinely believed that the parcel contained scent, and that he may not have had any suspicions that there was anything illicit in the parcel, and that he had no opportunity of verifying its contents. For in that case it is not proved that he was in possession of the contents of the parcel.  
            The accused has, therefore, been deprived of the chance of putting before the jury a defence which was in theory open to him on the facts of this case. But the evidence against him was so strong that no jury properly directed would have acquitted him. In my opinion, therefore, the proviso should be applied and I would dismiss the appeal."  

7. Strong as the language provided in the headnote in the report of that, it has been sufficiently explained away by this passage. It is decided entirely in the spirit that the Act of Parliament provided an absolute prohibition. It is of interest to note that the Warner's case was decided by the House of Lords in August, 1968. There followed another case, a drugs case, in Regina v. Hussain, the judgment in which was delivered by the Court of Appeal on the 2nd of May, 1969. Lord Justice Widgery, as he then was, said at page 572:

            "The second count is another matter. The second count, as I have said, charged the accused with possession of a dangerous drug (cannabis). In regard to this the charman gave the type of direction which was common before the recent decision of the House of Lords in Reg. v. Warner (1969) 2 A.C. 256. In other words, the direction in regard to possession was to the effect that it was only necessary for the jury to be satisfied that the accused was in control of the goods, and did not go on to invite the jury to consider whether the accused was aware of the character of the goods.  
            In particular, towards the end of the summing-up the point is put very shortly. The chairman says to the jury:  
' ..... are you satisfied that he consented to have that stuff put in his cabin without knowing precisely what it was, knowing that there was stuff there in those packages that were being hidden with his consent .....'  

He is clearly there obscuring any importance which might arise from the fact that the accused might not know the nature and character of the goods of which he was alleged to be in possession."

8. Hussain's case is yet another dangerous drugs case. Despite the House of Lords' decision, the learned Lord Justice again mentioned the mental element that is required as to the knowledge of the character of the goods.

9. Having regard that the object of the Dutiable Commodities Ordinance was merely to amend the law relating to the taxation and control of liquors, and for purposes connected therewith, I am not able to agree to the proposition that the said Ordinance provide an absolute prohibition. That is not all. The classic case for defining possession in this part of the world is the case of the King v. HON Sai-king, reported in 1950, Vol. 34, Hong Kong Law Reports. Mr. Justice Gould, as he then was, has said that case that:

            "This other principle applies only to the matter of possession on this indictment - in his direction to the jury - it relates to possession of things containing opium as distinct from the opium itself. The principle is this, that if a person is proved beyond reasonable doubt to have had in his possession any box or other receptacle or container which contains opium, or the keys of any such box or receptacle, then the onus shifts to him to show you either that he was not in possession of the opium although he was in possession of the receptacle, or the keys of it, or that he did not know that the thing contained in it was opium.  
            The onus on him is not as heavy as the onus on the Crown to which I have made reference. The accused need only show you that it is more probable than not, either that he did not have possession of the opium or that he had no knowledge of the nature of the thing in his possession. If the balance of the probabilities is in his favour, then that is sufficient to discharge the onus on him."  

10. In my opinion, in order to constitute possession under the Dutiable Commodities Ordinance, there must be the two requirements - knowledge of possession and, knowledge of the nature of the thing possessed.

11. Section 40 of the Dutiable (Commodities?) Ordinance only gives rise to two presumptions, namely, every "..... any goods to which this Ordinance applies are dutiable goods", (2) goods found in a premises are presumed to be in the possession of the tenant, until the contrary is proved. It is quite different from the provisions of the Dangerous Drugs Ordinance which apply to a far more serious commodity or offence. Section 47, Subsection 3 of the Dangerous Drugs Ordinance provides that:

"Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug."

12. This is a further presumption that the possessor knows the nature of the things possessed, which is lacking in the Dutiable Commodities Ordinance. But that does not really entirely defeat the Prosecution case. What I want to make clear is that, while the learned Magistrate has been meticulous in his findings and follows the Warner's case, I am of the opinion that he erred in saying What, "While it is true that to constitute possession, knowledge of possession is essential". He has not proceeded to say that knowledge of the thing possessed is also essential.

13. He is also wrong in saying that if he accepted the contention that the defendant did not realise that duty on this particular bottle of whisky had not been paid, then it would only be a matter of mitigation and not to decide on the guilt or innocence of the appellant. It is true that earlier on he did say that he was not satisfied that the end result rebutted the presumption contained in Section 40. However, he has given reason as to why he said he was not satisfied and the reason is that he did not think that the fact that the defendant did not realise duty had not been paid was important at all. He had not taken into consideration that the parcel originally containing the dutiable whisky was presented not to the appellant, but to the appellant's wife. He had not given sufficient weight to the fact that this bottle was put into the wine or spirit cupboard by the appellant's wife, although later the appellant was informed. He had not taken into consideration that out of a number of bottles, there was only one single bottle that was dutiable whisky. All the other bottles were duty paid. In other words, he had not given sufficient weight to the explanation given by the appellant in this case, who said that although his wife told him, he did not bother to find out. The appellant had never realised that out of the number of bottles he had in his possession, only one bottle had these few letters "HKDNP" printed on the lable. Such printing would not be readily visible from a distance. It is true that being a Preventive Officer with fifteen years service in the Preventive Service, he might be more vigilant in finding out whether duty had been paid on bottles of liquor presented to him. But, having regard to the fact that it was in one solitary bottle, it was presented to him by a friend, and that there was no evidence to show the appellant's knowledge that his friend had access to dutiable commodities without having to pay duty. It is, on the balance of probability quite probable that he would have accepted that bottle of spirit without further inquiry. While it is said many a time that negligence may be an offence, yet I do not feel that in this case the appellant's negligence drives one to the irresistible conclusion that he must have known that duty had not been paid.

14. Counsel for the Crown argued that the knowledge that duty had not been paid is a question of fact; whether the goods are dutiable is a matter of law. That is true. But, after all, there is no necessity to decide whether the goods are dutiable or not. The bottle of whisky is obviously dutiable since it is marked 'HKDNP'. However, on the question of fact, whether duty was in fact unpaid, the knowledge of the appellant is essential. He has said that he had no knowledge. The learned Magistrate accepted on that basis that he had no knowledge that duty had not been paid and said that he did not consider it relevant for his guilt or innocence and only relevant in mitigation of sentences. That is the gravamen of complaint on the part of the appellant in this appeal. I am of the opinion that in order to constitute possession there must be the act of possession together with the mental element of knowing the nature of the thing possessed.

15. There must be a reasonable doubt that the appellant might not have known that what he possessed was dutiable. On the balance of probability, I find had the learned Magistrate directed his mind to this question, he might have found that the appellant had rebutted this presumption in Section 40. For these ...(illegible) I find that there is not sufficient evidence to say beyond reasonable doubt that the appellant was in possession of the "dutiable" bottle of whisky. Accordingly, the appeal is allowed and the conviction is quashed. The fine is refunded but, of course, the bottle of whisky would have to be confiscated.

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