About this case:

• Citation:
  [2025] HCJAC 32
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Lord Beckett

Choon Seng Gan was found guilty of a single charge of being involved in the supply of cannabis contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He contended that the sheriff misdirected the jury by not telling them that they must be satisfied that the appellant knew he was involved in supplying prohibited drugs, and that the sheriff erred by failing to refer to the statutory defence under section 28 of the 1971 Act.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Doherty and Lord Armstrong. Paterson KC appeared for the appellant and Farrell, advocate depute, for the Crown.

Simple denial

On 14 June 2023, two police officers stopped the appellant driving his minibus accompanied by a passenger, Mr Ming Fa Zheng, in Glasgow. Mr Zheng was sitting behind the appellant. The police recovered two suitcases containing between them 74 vacuum-sealed packages containing herbal cannabis with a total value of £241,700. The police also recovered £1,200 in £20 notes and £430 in mixed notes from the van together with clothing, food and tools. The van was noted to be in an untidy condition.

At trial, the appellant intimated a special defence of incrimination blaming Mr Zheng. His evidence was that he lived in London and worked as an unofficial tour operator/taxi driver and Mr Zheng had paid him to transport him and his belongings from Manchester to Glasgow, where Mr Zheng was going to live. He denied knowing that the suitcases contained drugs and said the £1,200 of cash was in case he needed it for food, petrol, or accommodation.

In his closing directions, the trial judge defined the constituents of the crime and the general effect of exculpatory evidence and directed that a verdict of guilty required the accused to be knowingly involved in the supply of something, although not necessarily a controlled drug. It was submitted for the appellant that the sheriff erred in failing to give clear directions that the Crown required to prove that the appellant was knowingly involved in an operation with an element of illegality.

In respect of the section 28 defence, which was not raised at trial, it was submitted that section 28(2) was engaged as the appellant had no idea what was in Mr Zheng’s suitcases. The Crown submitted that the sheriff had directed the jury appropriately. The appellant’s defence was one of simple denial, and therefore the statutory defence was not engaged.

Favourable to the appellant

Delivering the opinion of the court, Lord Beckett began by briefly dealing with the first ground of appeal: “We reject the first complaint articulated in the grounds of appeal. It was necessary for the Crown to establish that the appellant was knowingly involved in a supplying operation and that, in fact, a controlled drug was being supplied. That is what the sheriff told the jury. His direction was based on the court’s observations in Salmon v HMA (1999), and subsequent case-law, and was correct as far as it went.”

Turning to the arguments on the section 28 defence, Lord Beckett observed: “We have sympathy for the sheriff in relation to the second complaint. It would have been prudent for him to have raised with the parties whether s 28 was in issue. He did not do that, and no-one addressed him on it. Where s 28 is being relied upon the defence ought to make that clear. Nevertheless, in the particular circumstances of this case, we are not persuaded that the point cannot now be considered on appeal.”

He explained further: “An appropriate direction would have been that if the jury concluded that the appellant was knowingly involved in a supplying operation, he should nevertheless be acquitted if he did not know, suspect or have reason to suspect that the suitcase contained a controlled drug or if the jury were left in reasonable doubt about that. The failure to give such a direction was a misdirection. However, in one respect it was favourable to the appellant, because the jury were not directed to consider whether the appellant suspected or had reason to suspect that the contents of the suitcases may be drugs.”

Lord Beckett concluded: “It can be taken from the jury’s guilty verdict that they rejected the appellant’s evidence that he was not knowingly involved in a supplying operation. Therefore, at the very least, they must have been satisfied that he knew that the cases were to be delivered to someone else. It follows that they rejected at least part of the appellant’s account. Having disbelieved him in relation to that, and having rejected his ‘incrimination’ of Mr Zheng, it is fanciful that, had a s 28(2) direction been given, they would have believed the remainder of the appellant’s account or entertained a reasonable doubt about his guilt because of it.”

Having determined that there had been no miscarriage of justice, the appeal was refused.