The Queen v. Leung Chi Keung

CACC000012/1988

BETWEEN

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Coram: Hon. Cons, Ag. C.J., Power & Penlington, JJ.A.

Date of hearing: 12th July, 1988.

Date of delivery of judgment: 12th July, 1988.

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. The Applicant was convicted before O'Dea J. and a jury of possession of drugs for the purpose of unlawful trafficking. He now seeks leave to appeal.

2. The evidence for the Crown was that when intercepted by Customs Officers the Applicant was a passenger in a car driven by his co-defendant. At the Applicant's feet were two plastic bags containing what was later found to be almost 5 kilos of heroin.

3. The Applicant gave evidence in which he explained how the bags came to be at his feet. He said that his friend, the co-defendant, had offered him a lift after a game of snooker. In the course of the journey the friend had stopped the car, gone into certain premises from which he returned carrying the two bags and a box. He had asked the applicant to carry the bags into the car while he himself disposed of the box.

4. In circumstances of that kind one would have expected the judge, when summing up, to draw the attention of the jury to the presumption in Section 47(1)(a) of the Dangerous Drugs Ordinance Cap. 134, at the same time pointing out to them that in view of the evidence of the Applicant there was hardly need for it to be invoked. One would then expect him to advise the jury that even so they should not find him guilty of the offence unless he were also shown to have known the nature of what was in the bags, that is to say, that it was heroin; then, to that end, draw the jury's attention to the presumption in Section 47(3) of the Ordinance; and finally explain the requisite standard of proof required to rebut the presumptions.

5. The judge did not approach the question quite in that way. He drew the jury's attention to Section 47(1)(a), but when explaining to them then how the presumption could be rebutted, he spoke as though it were a question of the Section 47(3) presumption, a section to which he at no time drew the attention of the jury.

6. It is conceded that earlier in the summing up the judge had very correctly put to the jury the one and only issue in the case, namely, "did the Defendant know that the bags contained dangerous drugs?" It is suggested however, as a first ground of appeal, that by then carrying on as we have just outlined, the judge confused the jury. With respect, we are not disposed to agree.

7. Then it is suggested, as a second ground, that the judge left the jury at the end with a misdirection as to the standard of proof. What he 'finally said in this respect is -

"    So what you are really looking at is: on the evidence as a whole, is it more likely than not that he either knew or did not know of the drugs in the bag?"

This clearly contains the suggestion that guilt or innocence depends upon what is "more likely". Taken in academic isolation that would of course amount to a misdirection. But taken in the context of the actual circumstances it leads the jury to the correct position. If their Conclusion on the balance of probabilities was that the Defendant did know that the bags held drugs, they would bring in a verdict of guilty. Their decision would have been the same, had they known about the Section 47(3) presumption, because clearly they would not have been satisfied that the Defendant had rebutted the presumption. The same result would have been achieved if they had found the probabilities equally balanced. Only if they had concluded, which they did not, that the Defendant did not know their nature, would they have acquitted.

8. The mirror reflection of the present situation was before this Court in the case of the R. v. Wu Man Choi⁽¹⁾.There the judge had not drawn the attention of the jury to the presumption of Section 47(1)(a), but had drawn their attention to that in Section 47(3). It was said :

"Where facts which would give rise to a presumption are established, that presumption operates whether it is mentioned or not. It is therefore desirable, where a presumption could arise, for the trial judge to direct the jury as to the presumption, even though there may be evidence from which the fact which may be presumed could be inferred."

We would agree with the general desirability that juries should be directed as to the appropriate presumptions. But we are satisfied that the true question was in fact left to the jury in this case, and that had the presumption been drawn to their attention, their verdict would inevitably have been the same.

9. For these reasons, we refuse the application for leave to appeal.

(1) (1979) H.K.L.R. 174 at 175

Representation:

Gary Plowman (M/s Poon & Dissanayake) for the Applicant

G.J. Lugar-Mawson, Crown Prosecutor for the Respondent