Kwan Ping Bong v The Queen

JurisdictionUK Non-devolved
Judgment Date1979
Date1979
Year1979
CourtPrivy Council
[PRIVY COUNCIL] KWAN PING BONG AND ANOTHER APPELLANTS AND THE QUEEN RESPONDENT [APPEAL FROM THE COURT OF APPEAL OF HONG KONG]

1978 Nov. 16; 1979 Jan. 15

Lord Diplock, Lord Edmund-Davies and Lord Keith of Kinkel

Hong Kong - Crime - Drugs - Unauthorised possession of - Drugs in consignment of jade-stones - Consignee's presentation of air waybill - Misdirection on onus of proving knowledge of presence of drugs - Effect of statutory presumptions - Application of proviso - Whether appropriate - Criminal Procedure Ordinance (Laws of Hong Kong. 1972, c. 221), s. 83 (1) - Dangerous Drugs Ordinance (Laws of Hong Kong, 1974, c. 134), s. 47

Six parcels of jadestones which arrived at Kai Tak airport in Hong Kong from Bangkok were detained for examination and a receipt (“the D.C. & I. receipt”) was issued to an airline clerk. The first appellant, a jade merchant, who was named as consignee in the air waybill which accompanied the goods, went with his partner, the second appellant, to Kai Tak to collect the stones, and he was given a copy of the waybill and the D.C. & I. receipt. The parcels were opened at the airport where they were being detained and two of the stones were found to be fakes which contained morphine. The appellants were charged with trafficking in the morphine. At the trial the primary issue was whether the appellants knew of the presence of the morphine in the parcels. The prosecution relied on section 47 (2) of the Dangerous Drugs OrdinanceF1, whereby a person proved to have had in his possession a document of title to goods, as defined in section 2 of the Sale of Goods OrdinanceF2, relating to a dangerous drug, was to be presumed to have had the drug in his possession and by subsection (3) to have known the nature of the drug unless the contrary was proved. “Documents of title,” as defined in section 2 consisted of certain named documents and, as a second category, any other documents used in the ordinary course of business as proof of possession or control of goods. The named documents did not include an air waybill or a D.C. & I. receipt, and no evidence was called at the trial that those documents came within the second category. The defence case was that the Bangkok consignor must have inserted the false stones in the parcels, unknown to the appellants. The judge directed the jury that by reason of the statutory presumptions arising from the appellants' possession of the waybill and the D.C. & I. receipt, the onus lay on them to prove on the balance of probabilities that they had no knowledge of the presence of the morphine. The appellants were convicted, and on their appeal the Court of Appeal of Hong Kong held that even if the judge's direction was wrong in law, no miscarriage of justice had occurred. and it applied the proviso to section 83 (1) of the Criminal Procedure OrdinanceF3 and dismissed the appeals.

On appeal by the appellants to the Judicial Committee: —

Held, allowing the appeal, that as the prosecution failed to prove that either the air waybill or the D.C. & I. receipt came within the documents referred to in section 47 (2) of the Dangerous Drugs Ordinance, the direction to the jury to apply the statutory presumptions in section 47 was wrong (post, p. 437A–B); that the effect of those presumptions was to convert inferences which at common law the jury would not be entitled to draw unless they were satisfied beyond all reasonable doubt that they were right into inferences which they were bound to draw unless satisfied on the balance of probabilities that they were wrong (post, p. 438B–C); that in deciding to apply the proviso to section 83 (1) of the Criminal Procedure Ordinance the Court of Appeal had overlooked that effect of the presumptions in section 47 (3) and (4) of the Dangerous Drugs Ordinance on the standard of proof of the appellant's guilty knowledge, and, since the effect of the misdirection on that vital issue was to lead the jury to think that they must convict unless the appellants convinced them on the balance of probabilities that their story was actually true (whereas on a proper direction they could have acquitted if they thought it was possibly true), the verdict of guilty could not be other than unsafe and unsatisfactory; and that accordingly the conviction must be quashed and the case remitted to the Court of Appeal to consider whether or not to order a new trial (post, pp. 438D–439B).

Per curiam. The Judicial Committee will only interfere with a decision of the local court of criminal appeal as to whether or not to apply a proviso in the terms of that contained in section 83 (1) in cases where it appears that the decision was based upon an error involving some principle of general importance to the administration of criminal justice. A misdirection as to the onus of proof of an essential fact in issue at the trial is seldom a proper case for the application of the proviso (post, pp. 437G–H, 439A–B).

Decision of Court of Appeal of Hong Kong reversed.

No cases are referred to in the judgment or were cited in argument.

APPEAL (No. 36 of 1978) from a decision of the Court of Appeal of Hong Kong (Briggs C.J. and Huggins and Pickering JJ.A.) given on May 5, 1977, dismissing the appeal...

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    ... ... In Plomp v The Queen (1963) 110 CLR 234 at 252, Menzies J observed: ... [W]here ... 82        The leading case in Hong Kong on this area is Kwan Ping-bong v The Queen [1979] HKLR 1 at 5 where it was inter alia ... ...
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    ...when deciding whether to make the initial assumption. 139 See, for example, the reasoning of Lord Diplock in Kwan Ping Bong v. The Queen [1979] AC 609, PC, at 615H-616A, concerning the Hong Kong Dangerous Drugs Ordinance under which a person who was proved to have in his possession a docume......
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    ...The following cases were referred to in the judgment: Gunawardena, Harbutt and Banks, Re WLR[1990] 1 WLR 703 Kwan Ping Bong & Anor v R ELR[1979] AC 609 R v Cheema WLR[1994] 1 WLR 147 R v Clinton WLR[1993] 1 WLR 1181 R v Curry UNK[1988] Crim LR 527 R v Durante WLR[1972] 1 WLR 1612 R v Gautam......
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    ...of R v Hedgecock, Dyer and Mayers [2007] EWCA Crim 3486 and the judgment of Laws LJ who referred to Lord Diplock in Kwan Ping Bong v R [1979] AC 609 and the statements of Moses LJ in R v Jabber [2006] EWCA Crim 294, this powerful Court summarised the position as "(1) in all cases where a ju......
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  • THE BURDEN OF PROOF IN CRIMINAL JUSTICE1
    • Singapore
    • Singapore Academy of Law Journal No. 1992, December 1992
    • 1 December 1992
    ...89. 99 [1943] 2 All E.R. 156. 100 [1987] 2 M.L.J. 217, at p. 218. 101 [1975] 2 M.L.J. 58, at p. 59. 102 See the discussion above. 103 [1979] 2 W.L.R. 433, at pp. 437—38. 104 (1961) 27 M.L.J. 12, at p. 13. 105 Kee Kim Chooi v. PP (1952) 18 M.L.J. 180 and PP v. Yew Yong Kong(1953) 19 M.L.J. 1......

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