Neutral Citation Number: [2009] EWCA Crim 2965 
Case No: 200903584/D3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 20 August 2009

B e f o r e:

LORD JUSTICE THOMAS 

MR JUSTICE TREACY 
 
MR JUSTICE KING 
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R E G I N A 

v 

PING CHEN CHEUNG 
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Mr A Watkins appeared on behalf of the Applicant 
Mr Hunter appeared on behalf of the Crown 
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J U D G M E N T 

1.	MR JUSTICE KING:  This is an application for leave to appeal conviction and leave to appeal against sentence which has been referred to the Full Court by the single judge.  
2.	This applicant faced an indictment which contained eight counts.  At the beginning of his trial on 15 June 2009, he pleaded guilty to count 1.  This alleged unauthorised use of trade marks in relation to goods contrary to section 94(1) of the Trade Marks Act 2004.  The particulars alleged that he on 4 February 2009 had in his possession a quantity of DVDs which bore a registered trade mark with a view to selling or offering them for sale with a view for gain for himself without the consent of the proprietor.  
3.	He was convicted on 16 June 2009 after trial on each of the remaining seven counts, each of which alleged an offence of possession of extreme pornographic images contrary to section 63(1) of the Criminal Justice and Immigration Act 2008.  The particulars in each count were that he, on 4 February 2009, had in his possession an extreme pornographic image which portrayed in an explicit and realistic way a person performing oral sex on an animal, a dog, and which was grossly offensive, disgusting or otherwise of an obscene character.
4.	Sentence was passed the same day.  The applicant received concurrent sentences on counts 2 to 8 of 14 months' imprisonment and 12 months concurrent on count 1.  131 days on remand were ordered to count towards sentence.  A order was made for the forfeiture of the DVDs.   
5.	Under section 63(1) of the Criminal Justice and Immigration Act 2008 it is an offence to be in possession of an extreme pornographic image as defined in subsections (4), (5) and (6).  Under section 65(1) of the Act where a person is charged with an offence under section 63 it is a defence if the person can prove any of the matters mentioned in subsection (2).  Among these matters are those set out in subsection (2)(b), namely that the person had not seen the image and did not know, nor had any cause to suspect, it to be an extreme pornographic image.  This application in relation to conviction concerns solely the adequacy of the judge's direction on possession and the statutory defence.
6.	The facts of the case were straightforward.  On 4 February 2009 at about ten past 2 in the afternoon the appellant, a Chinese national with a poor command of English, was stopped by police officers in the street.  The appellant was carrying a bulging laptop bag.  It appeared swollen, bulked out by its content.  The police looked inside the bag.  Within the central compartment were bundles of DVDs of films, estimated at several hundreds, which the officer believed to be counterfeit.  They were assembled in packs tied together by rubber bands.  It was in relation to these DVDs that the applicant was ultimately to enter his guilty plea on count 1.  The applicant was arrested and taken to the police station.
7.	At the police station the bag was emptied.  Within the side compartment was a volume of pornographic DVDs similarly assembled.  Right at the bottom of the central compartment, underneath the bulk of the mainstream counterfeit DVDs, was found a small bundle of eight DVDs which were the subject matter of counts 2 to 8 on the indictment.  They also had a red elastic band around them.  Each of these were of a pornographic nature relating to sexual activity with dogs.  The outer covers or sleeves of the eight DVDs themselves depicted explicit and realistic oral sex with a dog.  Although the issue was properly left to the jury, the question whether these images fell within the statutory definition of extreme pornography was not contested at the trial.  The live issue of fact litigated at the trial was that of the appellant's knowledge prior to arrest, of the eight "extreme" DVDs.
8.	In interview at the police station, conducted through an interpreter, the appellant said that he knew the bag contained DVDs and that he was going to sell them, or some of them, but that he did not know that he had the specific DVDs which were of an extreme pornographic nature and which had been found by the police at the bottom of the bag.  He said he had been given the DVDs that day by a friend, whose name and address he did not know, but he had not been able to open the bag and was taking it home.  
9.	In evidence to the jury the appellant said that on 4 February he had gone to Fulham to look for a job.  He had gone over at lunch time when he met a friend who had asked him, "If you're going back can I trouble you to take this bag with you?"  
10.	At page 9 of the summing‑up the judge referred to the evidence of the appellant given the day before, that he had not known what was in the bag and had thought perhaps there were computer parts in it.  However, the judge continued:
"... as he said in his interview to the police ‑‑ and he's told you in the court again today ‑‑ he has told you that he did know that there were DVDs in the bag, and it was his intention that he was going to sell the DVDs.  And of course this is resolved in this sense, that as you've heard he has pleaded guilty in respect of count 1 on the indictment."
11.	At page 10 the judge told the jury that:
"... the clear defence that he puts before you is that he did not know that amongst the DVDs that were in that bag were the eight that are the subject of these counts."
and that the applicant's case was that he had only had the bag for a short time, he had not opened the bag and it was only when he was at the police station that he had become aware of the extreme DVDs at the bottom of the bag.
12.	Shortly after those passages the judge referred to the defence points that the DVDs had been hidden at the bottom of the bag, not readily visible to the officers when they had looked inside cursorily in the street and that there was an  absence of any fingerprint or other forensic evidence to suggest that the appellant had ever handled the DVDs.
13.	We turn to the grounds of appeal against conviction.  As we have indicated, this application concerns solely the adequacy of the judge's direction on possession, in particular in relation to what, if anything, the prosecution have to prove as to the knowledge of the appellant in respect of the eight DVDs, the subject of counts 2 to 8, and in relation to her direction on the statutory defence.  
14.	The offence created under the 2008 Act is a new offence.  However, we have no doubt that the concept of possession in section 63 does carry with it both a physical and a mental element in the same way as possession has been interpreted in offences under the Misuse of Drugs Act 1971 which provides for a similar statutory defence under section 28.  We have been referred to the well‑known case of Warner [1969] 2 AC 256, the decision of this court in McNamara 87 Cr App R 246 and the four propositions set out at pages 250 to 251.  We were further referred to the decisions of the Divisional Court in Atkins v DPP [2000] 2 Cr App R 248 and of this court in R v Ross Warwick Porter [2006] 2 Cr App R 25.
15.	For present purposes it is sufficient to state that it was not enough for the prosecution to establish that the appellant was in physical possession of the offending DVD images as a matter of fact in the sense of their actually being within his custody or control in the bag he was carrying.  Before any question of the statutory defence could arise, the prosecution had also to establish to the criminal standard of proof that the appellant had knowledge of the existence of the "things" that were in his custody or control.  However, this will in the ordinary case be quite sufficient to establish possession.  The prosecution do not have to prove that the defendant knew that the "thing" which was to his knowledge in his custody or control had the requisite quality giving rise to the offence, in this case that the DVD contained an extreme pornographic image.  Otherwise the defence under section 65(2)(b) would be otiose.  It is only if there is a real doubt as to whether the defendant believed that that which he knew he had, was of a wholly different nature from that which in fact it was, that possession would not be made out.  A mere mistake as to quality of the thing which the defendant knows is in his possession or control is not enough to prevent him from being in possession for the purposes of the offence under section 63.  What amounts to something of a wholly different nature will be a question of fact and degree for the jury in a given case where this issue arises.  A belief, for example, that something which is in fact a collection of DVDs is a collection of, say, floor files might well qualify.  However, that is not this case.  Particularly relevant to the present case is the fourth proposition set out in McNamara that in the case of a package or a box, (in this case we have a bag), the defendant's possession of it will lead to a strong inference that the defendant was in possession of its contents within the meaning of the statutory provision.  
16.	If the jury are sure that the defendant was knowingly in possession of an extreme image in the above sense then the burden shifts to the defendant to establish on the balance of probabilities that the matters making up the statutory defence ‑‑ in this case that he had not seen the image concerned and did not know nor had any cause to suspect it to be an extreme pornographic image.  
17.	Applying these principles to the present case, on the appellant's own evidence there was really only one answer to the question whether the appellant was in possession of the extreme DVDs images which were the subject of the counts on which he was convicted.  Although it still remained a question for the jury to determine, absent any formal admission of such possession, the appellant's own evidence that he knew, before he was stopped by the police, that the bag he was carrying contained DVD images, was sufficient to establish possession.  It was not necessary for the Crown to establish that the appellant knew of the exact nature of the eight DVDs at the bottom of the bag.  It was sufficient that these were among the DVDs which he knew he had as a generality.  He was as much in possession of these DVDs as he was of the others to whose possession he pleaded guilty for the purposes on count 1.  There was no issue that he might have believed the eight DVDs were of a wholly different character from that which they turned out to be.  The exact nature of the images on or within the particular DVDs cannot go to such an issue.  The appellant raised no issue that the eight extreme DVDs might have been put or slipped into the bag without his knowledge so as to fall within the first proposition of McNamara.  
18.	It follows on the facts of this case that the real issue for the jury was whether the statutory defence had been made out.  This required a careful direction tailored to the facts of the case on what exactly had to be established by the defendant on the balance of probabilities, namely that he had not seen the image concerned, that he did not know, nor had any cause to suspect, it to be an extreme pornographic image.
19.	Unfortunately it seems to us on a reading of the summing‑up as a whole, that although the judge in the early parts of her judgment correctly directed the jury on the facts of this case that possession was not in dispute and the essential issue for them was whether the appellant had made out the statutory defence, the judge later became thoroughly confused as to what had to be established by the Crown to the criminal standard of proof for the purposes of possession, by way of knowledge on the part of the appellant prior to his bag being searched by the police, and what had to be established by the appellant on the balance of probabilities by way of lack of knowledge to make out his statutory defence.  This was particularly so after a note had been received from the jury on these very questions.  The note said this and it was sent following their retirement:
"The indictment sheet states that the offence of possession of extreme pornographic images, does the defendant need to have knowledge of the possession and do the prosecution need to prove knowledge beyond reasonable doubt."
20.	In response to that question the judge gave the following directions to the jury which appear at pages 24D to 25D. 
"As far as the need for knowledge, in this case the defendant admits that he had the bag, and in the bag were these DVDs, including the eight specific ones.  So possession which you have to be sure about, it's a matter for the Crown to prove and the possession is not in dispute.  It's his knowledge, his knowledge that they were there.  He's not saying, 'They weren't in my bag at all and somebody's put them there at police station,' or anything like that.  He's saying, 'I know that they were found in my bag, but I did not know that those eight were there.'  And that's where this defence comes in which Parliament has set up, that where a person is charged with an offence under this section it is a defence for that person to show on balance of probabilities that it's more likely than not that they had a legitimate reason for being in possession of the image concerned, and in this particular case that the person had not seen the image concerned and did not know, nor had any cause to suspect, that it was an extreme pornographic image.  Possession causes a lot of problems for juries, and for judges and lawyers generally.  You might be in possession of something because somebody's slipped it into your pocket, but you wouldn't know it was there because somebody slipped it in without you being aware of it.  You wouldn't have knowledge of it being in your possession.  You can have possession of something which you may not physically have in your control.  You may have given it to someone else, but you actually possess it and can control it.  There are many different ways of looking at possession.  What will help you in this case is to focus on the issue, which is this defendant says, 'Yes, I had possession of it, but I did not know it was there.'  And the prosecution have to satisfy you that it was in his possession, as I say there's no dispute the DVDs were all in that bag.  What they have to make you sure of is that he knew he had it in his possession and his defence is on the balance of probabilities, 'I did not know that I had it in my possession.' I hope that helps a little.  It's a complicated area of law."
21.	The reaction of the foreman to this direction was, perhaps, understandable.  It reads as follows.  
"I think there's a little bit of confusion.  Do we have to be sure that the defendant knew that those DVDs were in his bag, or do we just on the balance of probability feel that it was likely that he knew?" 
22.	The answer of the learned judge was in these terms:
"Right.  You have to be sure that he had the items in his possession.  If you're sure about that then ask yourself on a balance of probabilities do we think he knew that he had them in his possession.  All right?  Any other matter or shall I send you back up again, please?  All right.  Thank you very much, if you'd like to go back into retirement." 
23.	This last direction was plainly wrong.  We agree with counsel for the appellant, Mr Watkins, that it not only contradicted the earlier direction that the prosecution had to make them sure that he knew he had it in his possession, but gave a wholly inadequate direction at this stage of the nature of the statutory defence and what the appellant and not the Crown had to establish on the balance of probabilities.  We agree with the criticism that this direction hopelessly conflated the statutory defence upon which the appellant was relying, with knowledge as part of the _mens rea_ of the offence to be established by the Crown.  As counsel has said in his written submissions, the statutory defence became submerged in this direction and muddied the waters on how the jury were to apply the statutory defence. 
24.	The jury duly retired at eight minutes past 3 after this direction and returned with guilty verdicts within the hour.  We agree with counsel that the speed with which they returned suggested there was a danger that the answer they had just received had been decisive.  We agree that there was a very real risk here that the jury were thoroughly confused and approached the statutory defence wrongly.  For all these reasons we think this conviction is unsafe.  This application is allowed.  We allow the appeal against conviction on counts 2 to 8.  They must be quashed.
25.	LORD JUSTICE THOMAS:  Thank you both very much indeed.  Thank you for coming along and trying to help us.  
26.	MR HUNTER:  My Lord, in terms of a retrial, I don't have any firm instructions one way or the other.  In order to be safe, to cover my back ‑‑ 
27.	LORD JUSTICE THOMAS:  I don't like back covering.  It is much better you make a phone call.
28.	MR HUNTER:  Thank you.
29.	LORD JUSTICE THOMAS:  You might when you seek a retrial, when you're seeking instructions ‑‑ 
30.	MR JUSTICE KING:  We ought to make clear that the conviction quashed is only in relation to the convictions following the trial, that is counts 2 to 8.  The conviction on count 1, to which he pleaded guilty and sentenced, the sentence on that stands.
31.	MR HUNTER:  Thank you, my Lord.  
32.	LORD JUSTICE THOMAS:  You might bear in mind all the circumstances, including those which have just been mentioned by my Lord, and the additional penalty that will ensue before ‑‑ you might remind those behind you that we can't ‑‑ I think it is fair to you that you had better go and make a phone call and come back.
33.	MR HUNTER:  Could I ask that if I don't receive firm instructions would your Lordship want me to come back to court? 
34.	LORD JUSTICE THOMAS:  Yes, because we will make a decision but we think we ought to allow you at least to take some instructions.
35.	MR HUNTER:  Certainly.
36.	LORD JUSTICE THOMAS:  We will adjourn the matter not too long.  Come back before lunch.  Anything else you want?  Obviously you'll want to address us on a retrial.
37.	MR WATKINS:  No, my Lord.  I would seek to address you on a retrial.   
38.	MR JUSTICE KING:  There were only eight counts on the indictment? 
39.	MR WATKINS:  My Lord, I think that is right. 
40.	MR JUSTICE KING:  The summary refers to counts 2 to 9, but, as I understood it, although there had been eight DVDs, they were only put into seven counts.
41.	LORD JUSTICE THOMAS:  We will come back but we think in fairness we ought to give you the opportunity to take some quick instructions and then we will decide.  If your instructions are to drop it fine.  If they are, we will reach a decision, but you must bear in mind the observations my Lords have made. 
(Short Adjournment) 
42.	LORD JUSTICE THOMAS:  Can we just clarify one thing before you make your application.  As we have quashed the conviction, is there or is there not an appeal on sentence?  We assume, because you rise, there is no appeal on sentence. 
43.	MR WATKINS:  My Lord, that is right.  Yes.
44.	LORD JUSTICE THOMAS:  Are you making an application for a retrial? 
45.	MR HUNTER:  Yes, I am.
46.	LORD JUSTICE THOMAS:  Why? 
47.	MR HUNTER:  Because those who instruct ‑‑ 
48.	LORD JUSTICE THOMAS:  The earliest date of release is 5 September.
49.	MR HUNTER:  The sentence already ‑‑ the period of custody the appellant has already served, albeit a consideration, is not necessarily the only consideration.
50.	LORD JUSTICE THOMAS:  But the ‑‑ but, broadly speaking, it is now 20 August.
51.	MR HUNTER:  Yes.
52.	LORD JUSTICE THOMAS:  He will released on 5 September from the sentence he has served.
53.	MR HUNTER:  Yes.
54.	LORD JUSTICE THOMAS:  There is no way this trial can take place before that.
55.	MR HUNTER:  No.  
56.	MR JUSTICE KING:  There is a 12 month sentence and there is a 14 month sentence concurrent which has been quashed.
57.	LORD JUSTICE THOMAS:  What is the point?  Do those behind you, have they thought of that? 
58.	MR HUNTER:  Yes, I have informed them of the custodial element of the sentence which has passed in relation to the counts that have been quashed.  But their view is this, that if this is a man who routinely, or at least on that occasion, peddled materials of that kind and if that is right then that ought to be reflected on his record.  It is on that basis that I make the application.
59.	MR JUSTICE KING:  I might say at once I stated in my judgment of the court that he was recommended for deportation.  That, in fact, was not the case.
60.	MR HUNTER:  No.
61.	LORD JUSTICE THOMAS:  But what you want is to ‑‑ how long did this trial take? 
62.	MR WATKINS:  It took two days, my Lord.
63.	LORD JUSTICE THOMAS:  So you want a two day trial.
64.	MR HUNTER:  Yes.
65.	LORD JUSTICE THOMAS:  How busy is Kingston? 
66.	MR HUNTER:  I would imagine like most crown court centres in London very busy.  
67.	LORD JUSTICE THOMAS:  He would be on bail.  There is no sentence that could ‑‑ what is the point?  It is completely ... (Pause).  You know, we have to add to the custody ‑‑ I mean, there is a serious problem in London at the moment, as you know.
68.	MR HUNTER:  Yes.  
69.	LORD JUSTICE THOMAS:  You want to spend two days of court time to put something on his record for which he will get no further penalty effectively.
70.	MR HUNTER:  Yes.  I understand your Lordship's reservations.
71.	LORD JUSTICE THOMAS:  But doesn't the Crown Prosecution Service think about these things.  Is it an efficient use of resources within the criminal justice system for the purpose of adding something to his record? 
72.	MR HUNTER:  On one view, yes.  People who commit crime ordinarily it is reflected on their records.  If they do it again ‑‑
73.	LORD JUSTICE THOMAS:  He has on his record now a sentence for the unauthorised use of a trade mark and he has a 12 month sentence on his record for this matter.
74.	MR HUNTER:  Yes, but that count is of a wholly different nature to the counts that have been quashed.
75.	LORD JUSTICE THOMAS:  What do you say? 
76.	MR WATKINS:  My Lord, I would certainly seek to persuade you not to order a retrial.  The relevant endorsement catching the conduct is contained within the 12 month sentence passed for the trade mark offence in my submission.  In weighing up the interests of justice in my submission it would be an extraordinary expense, given the amount of time this defendant has already spent in custody, any sentence that could be passed on him subsequently were a retrial to be ordered.  Of course, my Lord, there was to be appeal against sentence in respect of that matter as well.   
77.	MR JUSTICE KING:  Before the conviction he had already spent 131 days on remand.
78.	MR WATKINS:  Since 4 February, yes.
79.	LORD JUSTICE THOMAS:  That is why the earliest release date is 5 September.  
80.	MR WATKINS:  My submission is that in all the circumstances it makes no sense to order a retrial.  It is not in the public interest. 
(Pause) 
81.	LORD JUSTICE THOMAS:  It is the view of the court that there will be no retrial in this matter.  It is unlikely that any greater sentence than that which he has already served would be imposed upon him if he was tried and we cannot think that looking at the overall operation of the system of justice, particularly in London, that any proper purpose can be served by requiring the hearing of this case which took two days on the last occasion for the purpose in circumstances where (1) it is unlikely there would be any additional sanction bearing in mind the amount of the sentence he has already served and, secondly, the severe constraint on court time in London.  
82.	So for those reasons we decide that there should not be a retrial.
83.	MR HUNTER:  So be it, my Lord.
84.	LORD JUSTICE THOMAS:  Thank you very much indeed.