Kwan Ping Bong v The Queen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1979 |
| Date | 1979 |
| Year | 1979 |
| Court | Privy Council |
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 -
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).
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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