Court of Appeal
Criminal Appeal No. 6 of 1985
14th March, 1986
SIR JAMES A. SMITH P.
SIR ALBERT L. STAINE J.A.

Appeal from decision of Supreme Court on an appeal from Inferior Court - Section 5(1)(b) of the Dangerous Drugs Ordinance Chapter 87 - Offence of strict liability - Definition of "possession" - Dangerous drug must be physically in the custody or under the control of the accused - Judge was right to find that the custody and control by the appellant in the circumstances was "possession" in the meaning of the subsection - Appeal dismissed.

J U D G M E N T

This is an appeal from the decision of the Supreme Court on appeal from an inferior court, which by Sec. 26(l)(a) of the Court of Appeal Ordinance (Ch. 73) is restricted to grounds involving a question of law alone.

The appellant, Richard Leslie, was acquitted in the magistrates court of an offence of possession of Indian hemp contrary to sec.5(1)(b)of the Dangerous Drugs Ordinance (Ch. 87). On appeal by the prosecution to the Supreme Court, the learned Chief Justice set aside the magistrate's decision, convicted Richard Leslie of the offence of possession of 33 packages containing 712 lbs. of Indian hemp and sentenced him to a fine of $50,000 or two years imprisonment in default.

Briefly the facts accepted by the trial magistrate were as follows: On 28th April, 1984 Richard Leslie, with another man, set out on a fishing expedition to northern Lagoon. On the way he met a red boat with four men of Spanish descent abroad. Their red boat was stationary due to engine trouble. They offered Leslie $150 to tow them to Northern Lagoon, a distance of about 15 miles. To reduce the strain of towing on the engine of Leslie's skiff, one of the four men and the loads in the red boat were transferred to the skiff and the fishing tackle from the skiff was put in the red boat. The loads transferred to the skiff consisted of 33 brown packages including two crocus sacks and a shotgun. When the two vessels reached the shore of Northern Lagoon as indicated by the men of Spanish descent, they were intercepted by the police. The four men of Spanish descent ran into the bush. The policeman jumped into the skiff and then gave chase. Leslie stayed in the skiff making no attempt to run away. The policeman returned with containers of aviation petrol from somewhere in the bush; one of them unsuccessfully tried to start the engine of the red boat. Leslie said: "I did not run because I did not know what were inside the packages". At the police station the packages and crocus sacks were opened and found to contain Indian hemp, weighing altogether 712 lbs.

The facts rested largely on the admissions of the appellant and showed that he had the physical custody of the packages and crocus sacks but he denied knowing they contained Indian hemp. On appeal, the Chief Justice found that the appellant knew he had the packages of Indian Hemp in his custody and under his control and continued:-

"It is difficult to understand any other conclusion on the evidence that at three o'clock in the afternoon the respondent (Leslie) was transporting 33 sacks of marijuana weighing 712 pounds or about 21 pounds per sack in his skiff."

On the facts it was open to the Chief Justice to draw such an inference.

As to the law the Chief Justice held-

"A consideration of section 5(1)(b) of the Ordinance (Cap. 87) in the policy of the Ordinance as indicated by its provisions as a whole confirms that the section itself framed in absolute terms establishes an offence of strict liability".

The subsection reads-

"5 (1) If any person-

(b) has in his possession any such substance (as mentioned in Sec. 4, which includes Indian hemp) he is guilty of an offence".

Counsel for the appellant has contended that the Chief Justice erred in holding that:-

(i) Sec.5 (1) (b) of the Dangerous Drugs Ordinance (Ch. 87) creates an offence of strict liability, and
(ii) that the appellant was in possession and had physical custody of the packages.

The wording of this subsection of our Ordinance is similar, in effect, to that in Sec. 1 of the English Drugs (Prevention and Misuse) Act 1964, which reads "….it shall not be lawful for a person to have in his possession a substance for the time being specified in the Schedule to this Act unless….". In the appeal of Regina v. Warner (1969) 2 A.C.256 these words in Sec. 1 were held to constitute an offence of strict liability. Hitherto in Belize our courts have, we understand, followed Warner and held, as the learned C.J. has done in the present case on appeal, that Sec. 5(1)(b) of our Dangerous Drugs Ordinance is also an offence of strict liability.

In the course of argument in this appeal both Regina v. Warner and the later case of Sweet v. Parsley (1970) A.C. 132, have been cited. Both these decisions of the House of Lords were considered at length by the Court of Appeal in Regina v. Howells (1977) Q.B. 614. It will be useful to quote at some length from the judgment of that Court delivered by Browne L.J. where he said:-

"The importance of Reg v. Warner in the present appeal lies in what their Lordships said as to absolute offences and those offences where it is necessary to prove mens rea in addition to proving the forbidden act. Lord Morris of Borth-y-Gest said, at pp. 219-293:

"I think it is important to recognise and to affirm that it is a general principle of our law that to commit an offence a man must have a guilty mind. Generally speaking, a statute will be applied as though that principle was incorporated into the enactment. I think, however, that it may be too sweeping to say that if Parliament introduces the word 'knowingly' it merely states what would be implied. The presence or absence of the word 'knowingly' may in some cases be of great importance in construing particular words in a particular enactment. The cases show, in my view, that what always has to be decided is the meaning of the particular statutory enactment. While recognising that mens rea is a prerequisite of a criminal conviction the question always is where Parliament in a particular instance has enacted that on proof of certain facts strict or absolute liability is to follow. Whether the subject matter of the legislation is such that a conviction would be regarded as involving serious stigma or whether the subject matter is such that a conviction would be regarded as involving minimal stigma cannot affect the question as to what Parliament has in fact enacted. It is to the words used by Parliament that attention has to be directed."

Dealing with the wording of the particular Act that he was construing Lord Morris of Borth-y-Gest said, at p.295:

"In considering these questions the wording in the Act must be regarded. It is a declared purpose of the Act to prevent the misuse of drugs. If actual possession of Particular substances which are regarded as potentially damaging is not controlled there will be danger of the misuse of them by those who possess them. They might be harmfully used; they might be sold in most undesirable ways. Parliament set out therefore to 'penalise' possession. That was a strong thing to do. Parliament proceeded to define and limit the classes and description of people who alone could possess. All the indications are that save in the case of such persons Parliament decided to forbid possession absolutely."

Our Dangerous Drugs Ordinance and Regulations thereunder also contain somewhat similar exceptions.

"Lord Guest in his speech was of the opinion that the section of the Drugs (Prevention of Misuse) Act 1964 was as absolute as it could be and he gave reasons why he considered it was an absolute offence, and he went onto say at p. 301:

"Absolute offences are by no means unknown to our law and have been created, inter alia, in relation to firearms (Firearms Act 1937) and shotguns (Criminal Justice Act 1967 s.85) which Acts create serious offences. A common feature of these Acts and the Drugs Act is that they all deal with dangerous substances where the object is to prevent unauthorised possession and illegal trafficking in those articles."

Lord Pearce's view of the enactment under question is clearly shown from this quotation from his speech, at p.307:

"The direction to which the accused was entitled would, in my opinion, be approximately as follows. The Act forbids possession of these drugs. Whether he possessed them with an innocent or guilty mind or for a laudable or improper purpose is immaterial since he is not allowed to possess them. If he possessed them he is guilty. If a man has physical control or possession of a thing that is sufficient possession under the Act provided that he knows that he has the thing. But you do not (within the meaning of the Act) possess things of whose existence you are unaware. The prosecution have here proved that he possessed the parcel, but have they proved that he possessed its contents also? There is a very strong inference of fact in any normal case that a man who possesses a parcel also possesses its contents, an inference on which a jury would in a normal case be justified in finding possession. A man who accepts possession of a parcel normally accepts possession of the contents."

Finally Lord Wilberforce was equally firm in his view that the statute that he was considering was an absolute one; he said, at p.312:

"First, in my opinion, there is no need, and no room, for an enquiry whether any separate requirement of mens rea to be imported into the statutory offence. We have a statute, absolute in its terms, exempting a large number of 'innocent' cases, prohibiting and penalising cases which remain for a possession which involves to the extent I have endeavoured to describe knowledge or means of knowledge, or guilty knowledge. No separate problem of the mental element in criminal offences in my opinion arises; the statute contain its own solution as to the kind of control penalised by the Act."

This problem was again considered by the House of Lords in Sweet v. Parsley 1970 A.C. 132. The appellant in that case had been charged with an offence under section 5(b) of the Dangerous Drugs Act 1965, it being alleged that she had been concerned in the management of premises used for the purpose of smoking cannabis resin. Their Lordships allowed her appeal from the Divisional Court and quashed her conviction on the ground that on its true construction section 5(b) did not create an absolute offence and that mens rea was an essential ingredient of the offence. Lord Reid said, at p. l48:

"Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea."

Lord Morris of Borth-y-Gest expressed the same view; he said, at p 152:

"The intention of Parliament is expressed in the words of an enactment. The words must be looked at in order to see whether either expressly or by necessary implication they displace the general rule or presumption that mens rea is a necessary prerequisite before guilt of an offence can be found. Particular words in the statute must be considered in their setting in the statute and having regard to all the provisions of the statute and to its declared or obvious purpose."

Lord Pearde put it this way, at p.156:

"Those who undertake various industrial and other activities, especially where these affect the life and health of the citizen, may find themselves liable to statutory punishment regardless of knowledge or intent, both in respect of their own acts or neglect and those of their servants. But one must remember that normally mens rea is still an ingredient of any offence. Before the court will dispense with the necessity for mens rea it has to be satisfied that Parliament so intended. The mere absence of the word 'knowingly' is not enough. But the nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs, and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge."

Lord Diplock, speaking of Reg. v. Tolson (1889) 23 Q.B.D. 168, said, at p. 163:

".…. that it laid down a general principle of construction of any enactment, which creates a criminal offence, that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent."

A reading of Reg. v. Warner (1969) 2 A. .C. 256 and Sweet v. Parsely (1970) A.C. 132 together leads this court to the view that in construing a penal statute it is vitally important to remember the presumption of mens rea as a necessary ingredient, but that Parliament may, by the wording of the Act and the nature of the matter dealt with, intend that the conduct forbidden should be penalised without proof of a guilty mind".

The long extract from the judgment of Browne L.J. which we have quoted, sets out the views of their Lordships which are relevant to the questions of law arising in our present appeal. In Warner's case the brief facts were as follows:

A police officer stopped Warner who was driving a van in the back of which were found three cases, one of which contained scent bottles and another a plastic bag containing amphetamine sulphate tablets, a dangerous drug. Warner had been to a cafe where he was accustomed to collect scent from one B and was told by the cafe proprietor that a parcel from B was under the counter. Warner found two parcels there, namely the one containing scent and the other which was found to contain the drugs. He said he had assumed both contained scent. He was convicted of possession of the drugs. On appeal to the House of Lords the question to be decided was:

Whether for the purposes of section 1 of the (Drugs Prevention of Misuse) Act a defendant is deemed to be in possession of the prohibited substance (i.e. the drug) when to his knowledge he is in physical possession of the substance but is unaware of its true nature.

Their Lordships, by a majority, answered the question in the affirmative and dismissed the appeal.

In our present appeal, Counsel for the appellant, has submitted that we should not follow the decision in Warner's case but follow the decision of the Privy Council in D.P.P. v. Brooks (1974) 2 W.L.R. 899 and (1974) 21 W.I.R. 412, on appeal from the judgment of the Court of Appeal for Jamaica. In the case the Appeal Court founded its judgment on the decision of a former Appeal Court of Jamaica in R. v. Livingston (1952) 6 J.L.R. 95. Livingston, the defendant, was a baggage man employed by bus owners, who were common carriers, who took into his custody, from a consignor for carriage on the bus of which he was baggageman a sack which was found to contain ganja. That court posed four questions two of which were:-

(2) Does "possession" in section 7(c) of the Dangerous Drugs Law require that a defendant before he can be convicted, must be shown to have had knowledge that he had the thing in question?

and (3) If so, must a defendant, before he can be convicted, be further shown to have had knowledge that the thing which he had was ganja",

and answered both in the affirmative.

Lord Diplock delivering the advice of the Privy Council said:-

P.414 of 21 WIR.:-

"The question of what are the mental elements required to constitute a criminal offence of having in one's possession a prohibited substance is a finely balanced one, as Warner's case itself shows. It turns on a consideration not only of the particular provision creating the offence but also of the policy of the Act disclosed by its provisions taken as a whole. The Jamaican legislation is not the same as that which was under consideration by the House of Lords in Warner's case. since R. v. Livingston was decided more than twenty years ago, it has been treated as authoritative on the extent of the knowledge of the accused needed to constitute the offence under the Jamaican legislation and has been frequently followed in Jamaican courts. Their Lordships would not think it right to disturb it as authority for what it did decide as to the mental element required to constitute the offence under s.7 (e) of the Dangerous Drugs Law of having in one's possession a dangerous drug."

It is apparent that the Appeal Court for Jamaica had followed the decision in Livingston from 1952 onwards, and it was for that reason that the Privy Council in Brooks (supra) was reluctant to interfere with the accepted view of the courts of Jamaica as to their interpretation of their Dangerous Drugs Law which as Lord Diplock said, was not the same as that which was under consideration in Warner's case. We understand that Warner's case has been followed by the Courts of Belize and we agree there is a distinct similarity between Sec. 1 of the English Drugs (Prevention of Misuse) Act 1964 and sec. 5(l)(b) of the Dangerous Drugs Ordinance of Belize. We do not therefore consider that we are bound by the dicta of Lord Diplock in Brooks to follow the decision in the Jamaican case of Livingston (supra).

We now turn to the interpretation of sec. 5 (l)(b) of our Dangerous Drugs Ordinance as to whether or not it is a subsection of strict liability such as sec. 1 of the English Drugs (Prevention of Misuse) Act 1964.

As already indicated the object of the Ordinance is to forbid the unauthorised possession of dangerous drugs identified in the Ordinance which are injurious to health and to strike at the social evil of trafficking in drugs. The dealing and trafficking in drugs and the unauthorised possession thereof has become a serious and growing menace in Belize. While we concede that mens rea is normally an essential ingredient of a criminal offence it is open to the legislature to create an absolute offence to meet the menace where the mere fact of possessing a prohibited dangerous drug is forbidden. If the element of knowledge or mens rea is to be imputed into sec. S(1)(b) it would be easy for an offender to evade the offence and make it almost impossible to achieve a successful prosecution requiring the prosecutor to establish knowledge not only of possession of the actual substance but also knowledge in the offender of the nature thereof as a prohibited drug.

The Chief Justice in his judgment also drew attention to the increasingly heavy penalties the Legislature has imposed for drug offences in the amending legislation of recent years, where on conviction on indictment the penalties have been increased since 1957 from a fine of 5,000 dollars or imprisonment for 10 years or both to a fine of 500,000 dollars or imprisonment for 10 years or both and on summary conviction from a fine of 1,000 dollars or imprisonment for 12 months or both to a fine of 100, 000 dollars or imprisonment for 5 years or both. These increases in fines, may be partially due to inflation but equally they indicate how prevalent drug offences have become and the serious view thereof held by the Legislature.

It is clear from our Dangerous Drugs Ordinance that its object is to control dangerous drugs and to forbid the cultivation, manufacture, possession, sale, importation, export, or otherwise dealing with dangerous drugs not authorised by Parts III and IV of the Ordinance.

The prohibitions in regard to the dangerous drug, Indian hemp are contained in sections 4, 5(l)(A) and 5(1) (b) of the Ordinance, which provide:-

4(1) No person shall import or bring into or export from Belize any of the following substances namely:-

(c) Indian hemp.

(2) Every person who acts in contravention of this section is guilty of an offence.

5(1) If any person-

(a) cultivates, manufacturers, sells or otherwise deals in any of the substances mentioned in section 4: or

(b) has in his possession any such substance; he is guilty of an offence.

The remaining subsections (c) to (f) relate to the drug opium.

It is to be observed that section 5(l)(b) prima facie creates an offence of strict liability in similar terms to Sec. 1 of the English Drugs (Prevention of Misuse) Act 1964.

Then in Sec. 6 of the Ordinance, which is the last section in Part II thereof it is stated-

6. Where any drugs to which this part applies are found upon any person or in premises occupied by any person, such person shall, unless he proves that the same was deposited there without his knowledge, be guilty of an offence.

This section, which was introduced into the Ordinance by amendment in 1981 is a1so phrased in terms of strict liability but it permits the defendant to prove on a balance of probabilities that the drug was found on his person or in his premises without his knowledge, in other words that the drugs had been "planted" on him. It is to be observed that no such right of proof is given to any such person if the drugs are found anywhere else, as for example in his boat. Section 6 has no application to the case against the appellant because the drugs were not found on his person nor on his premises - this latter word having its ordinary dictionary meaning of a "building with grounds and appurtenances" (see Concise Oxford Dictionary).

We need to interpret Sec. 5(1)(b) of our Ordinance with due regard to the words of the section, the mischief aimed at by the Ordinance and the difficulty of proof.

We have already indicated the mischief aimed at in Section 5(1)(b) of the Ordinance namely, to forbid the possession of Indian Hemp or any other drug listed in sec. 4(1) of the Ordinance and to create an offence of strict liability. The phrasing of the subsection is in clear terms without reference to knowledge or mens rea and in the light of the policy of the Ordinance as a whole it does create an absolute offence to which there is no defence beyond the onus which is passed to a defendant in Sec. 6 giving him the opportunity to prove lack of knowledge within the limit of that section. In both instances of Sec. 5(l)(b) and Section 6 the prosecution has to prove that the thing-in the present case-the packages, were found in the possession of the appellant and that they contained Indian Hemp. On the facts in the present case, the Indian hemp was found with the appellant in his skiff and provided the circumstances were such that he had possession thereof it is no defence that he did not know the packages contained Indian hemp. Sec. 6 has no application to the present facts as the Indian hemp was not found on the appellant's person nor on his premises but in his boat.

As to the question of possession, which is the second ground of appeal counsel for the appellant relied on the definition of possession in Jowitts' Dictionary of English Law which, with due respect, is in general terms and contemplates the meaning of possession in civil law. As Lord Diplock said in Brooks (Supra)

The technical doctrines of the civil law about possession are irrelevant in the field of criminal law. The actus reus required to constitute an offence is that the dangerous drug should physically in the custody or under the control of the accused.

In the present case, there is no doubt that the packages were under the appellant's control once they were transferred to his skiff. Was it essential that he should know what the packages contained.

In Warner, Lord Pearce at p.1343 as to the words "has in his possession" had this to say:

"The express words of the Drugs (Prevention of Misuse) Act 1964 have in his possession" admittedly connote a knowledge of some sort.

The difficulty comes when the 'possessor' knows that he has something, but is either unaware of what it is or is completely mistaken as to its qualities, e.g. thinks that the package contains scent (as was suggested here) or thinks the tablets are innocent aspirin when really they are guilty heroin. On the Crown's contention it is enough if a man knows that he physically possesses a thing even though he does not know its nature or is mistaken as to its qualities."

Lord Wilberforce at p.1352 gave this example:

"A package is handed over by an unknown man, at an unusual rendezvous, with no, or no satisfactory, explanation and for no explained purpose: the inference may well be drawn either that it was accepted with whatever it contained, or that it was handed over so that the holder had the right to possess himself of the contents. In either case possession might be found.

In all such cases, the starting point will be that the accused had physical control of something - a package, a bottle, a container - found to contain the substance. This is evidence-generally strong evidence - of possession. It calls for an explanation: the explanation will be heard and the jury must decide whether there is genuine ignorance of the presence of the substance, or such an acceptance of the package with all that it might contain, or with such opportunity to ascertain what it did contain or such guilty knowledge with regard to it as to make up the statutory possession.

This example by Lord Wilberforce is close to the facts of the present case. The men of Spanish descent were apparently unknown to the appellant; the packages were accepted by the appellant with whatever they contained and placed in his physical custody and control in an unusual locality in midafternoon. Those were circumstances indicating strong evidence of possession. The Chief Justice inferred from those facts that the appellant knew the contents of the packages to be Indian hemp.

However the Chief Justice also considered the law as set out in his judgment and for the reasons we have set out in this judgment we agree he was right to conclude that Sec. 5(l)(b) of our Dangerous Drugs Ordinance is an offence of strict liability and that the custody and control by the appellant in the circumstances was "possession" within the meaning of that subsection. For these reasons we would dismiss this appeal.

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