The Court of Appeal allowed Choung Vu’s appeal against convictions for possessing cannabis for sale or supply and for simple possession, but dismissed his appeal against a cannabis cultivation conviction. The court ruled that the evidence did not provide a sufficient basis for a properly directed jury to find beyond reasonable doubt that Vu was a primary participant in possessing the cannabis found at a house in Ballinlough, Kells, Co Meath.
Vu had been convicted by a jury at Trim Circuit Criminal Court on 8 July 2015, after a five-day trial. His appeal challenged the trial judge’s refusal to withdraw the case from the jury at the close of the prosecution evidence.
The prosecution case was based on joint enterprise and circumstantial evidence. Gardaí found about 130 plants they believed to be cannabis in a house converted for cultivation. Vu arrived at the property with two co-accused in a car containing equipment and plant nutrients associated with cultivation. CCTV footage showed Vu and one co-accused leaving a B&Q store in Naas after a receipt for items including a drill and expanding foam had been issued. The prosecution also relied on Vu’s interview account of his movements, which it said was evasive and included a false claim that he had travelled directly from Dublin to Meath.
The appeal court said possession required proof that the accused had knowledge of, and control over, the drugs. Possession could be constructive or arise through joint participation, but there had to be a clear evidential basis for finding a tacit agreement to possess the cannabis as a primary participant. The court concluded that the evidence did not meet that threshold for either possession count, which should have been withdrawn from the jury.
The court distinguished cultivation. A person could be guilty of that offence as a secondary participant, even without control over the plants. It found evidence from which a joint design to cultivate could be inferred, including Vu’s presence at the house in a vehicle carrying cultivation equipment and his attendance at B&Q with a co-accused. It said the case was not one of mere presence at the scene.
The court therefore allowed the appeal on counts 1 and 2 and dismissed it on count 3. The judgment addressed the appeal from the convictions; it did not report a new trial or sentence order.