The Queen v. Chan Siu Man and Another

CACC000154/1983

[Dangerous Drug: Presumptions burden and standard of proof: Knowledge on manufacturing charges must be proved.]

BETWEEN

Coram: Hon. Li, Silke, JJ.A. & Jones, J.

Date: 6th September 1983

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JUDGMENT

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Silke, J.A.:

1. The 1st appellant, CHAN Siu Man, was convicted after trial of an offence of manufacturing dangerous drugs; he was acquitted, again, after trial, of the offence of being in possession of dangerous drugs for the purpose of trafficking.

2. The 2nd appellant, WU Sing Ping, was convicted after trial of both the manufacturing and the possession charges.

3. They both seek leave to appeal against their convictions.

4. On the 22nd April 1982 there was a police raid on Flat C, 4th floor, 490 Queen's Road, West. Before and during the raid observation was being kept upon the flat from a place nearby by another police party.

5. There was a knock upon the door of the flat by the police - that knock was not replied to - the iron grille was broken down and the wooden door inside that was also broken and the party rushed into the flat.

6. At the time of their entry, the officer-in-charge was in communication with those whom I might call the "observers" and he had information that people were seen to leave the window of Room A of that flat.

7. It was the prosecution's case that the first person to leave that window and to get out upon the ledge was the first defendant - that is Chan - who was dressed in a black T-shirt and that he was then followed by two other men.

8. There was a direct conflict in the evidence in respect of this exit from the flat for Chan said that all he did was to lean out of the flat and call after the third defendant "Ah Wu! Ah Wu!" to try and see what was happening and to get him back.

9. Be that as it. may, a presumption arose by virtue of either his presence in the flat or his escape therefrom. The Crown relied on the matter, of the escape to show knowledge of that which was taking place in the flat itself.

10. Of the other two men, both were found lying injured on the ground at the foot of the building shortly afterwards and one of those two men was Wu, the third defendant, the 2nd appellant before us.

11. In the flat itself there was a material and equipment found from which the jury would inevitably find that manufacturing of dangerous drugs was taking plane. There was also found a substantial quantity of dangerous drugs - 5,507.21 grammes of a mixture containing 1,460.67 grammes of malts of esters of morphine.

12. Two other men were found in the flat. They were also on the indictment as the first and third defendants and they pleaded guilty to. the offences charged.

13. The defence of Chan was that he had been asked by Wu, the third defendant, to purchase a mixer, or mincer, on his behalf and bring it to the flat. To this end he went to a shop situated in the same building as that in which the flat was, brought it there, took it to the flat and was then unable to leave because the fourth defendant had objected to his departure. He was also offered a dinner by the third defendant whom he said was an old friend of his. He was paid a sum of $250 by the third defendant, the actual cost of the mixer was $216, and he was told he could keep the change.

14. As I have said, he denied that he was escaping from the flat and he denied that he was a participant in the manufacturing of the dangerous drugs.

15. The third defendant, Wu, gave no evidence in the Court below and I shall come back to him later.

16. There are a total of eight grounds of appeal including the additional ground which was lodged on the 3rd day of this month with the wind-up ground, if I may call it so that the trial and the verdict were unsafe and unsatisfactory.

17. I would encapsulate those grounds by saying that they relate, first of all, to the directions given by the trial judge on the burden of proof - both the burden of proof in respect of the prosecution and. the burden and standard of proof upon the defendants which arose after the presumptions had been brought into play. Second that they refer to a non-direction in respect of the manufacturing charge. The presumption does not embody knowledge and knowledge remained to be separately proved by the prosecution on the ordinary burden and standard placed upon them. Third that the trial judge failed adequately to put the defence of the first defendant to the jury.

18. On that last ground, if I may deal with it first, there were certain matters raised by the defendant in his evidence, and by his Counsel in cross-examination of the prosecution witnesses, which were not, it is true, specifically put before the jury in the course of the trial judge's summing-up.

19. This was a four-day trial and the jury had been addressed at length by Counsel. However even with that it would have been preferable had the trial judge made reference to, amongst other things, the fact that no dangerous drugs were found in the hair of the first defendant and to the defence contention, backed by evidence, relating to the manner in which his clothes became contaminated. The contention was that as a result of a fall - there was clear evidence that there was a fall which happened when he was pulled back from the window - in Room A which had substantial quantity of dangerous drugs in. it, the contamination occurred.

20. But it is Mr. O'Reilly Mayne's submissions in relation to the burden of proof which arouses the anxiety in this case.

21. It is true that on no less than thirteen separate occasions in the course of his summing-up, the trial judge made reference to the phrase "beyond a reasonable doubt". In each case he was referring to specific pieces of  evidence but nowhere in the course of that summing-up did he give what I might term the customary direction as to the burden and standard of proof which lay upon the prosecution.

22. Further, while making reference to the standard of proof which is placed upon a defendant when it is necessary for him to rebut a presumption, he used simply the words "likely" or "likelihood" without elaborating further.

23. It is incumbent upon a trial judge in a matter of this kind to, first of all, direct the jury that throughout the case, presumptions or no presumptions, the burden and the standard of proof of proving their case beyond reasonable doubt rests upon the prosecution; that, if the jury were satisfied so that they were sure that the primary facts giving rise to the presumption had been proved, the presumptions arose as a matter of law and that the onus then shifted to the defendant; that the burden and standard of proof upon the defendant was nothing like as high as that placed. upon the prosecution and that it was discharged upon the balance of probabilities, or that which has become known as the more "likely than not", test. There was no direct reference by the trial judge to this at all.

24. In relation to the manufacturing charge, there is a presumption which arises by virtue of the presence on a premises of a person or the escape from a premises of a person where manufacturing dangerous drugs was taking place.

25. Yeung Yee-man and another v. The Queen ⁽¹⁾ held - and we feel ourselves rightly or wrongly to be bound by this - that:

"Independently of the presumption which arose under section 45, the Crown must prove that the appellants knew that what was being manufactured was, in fact, a dangerous drug in order to secure a conviction."

26. The directions of the trial judge in this aspect limited themselves to the reiteration of the presumption itself and an illustration given as to its meaning. There was no direction that that presumption did not absolve the Crown from proving knowledge independent of it.

27. We feel that, in the light of these three fundamental matters the convictions on the charge of manufacturing of the first and the third defendants - for that which we have said as regards to the manufacturing charge applied equally to the third defendant - are unsafe and unsatisfactory.

28. There remains the appeal of the third defendant, Wu, who was unrepresented before us, on the possession for trafficking count. The prosecution's evidence as to this was that he was the occupier - his wife being the tenant - of these premises; that he had keys to these premises; that he had asked the first defendant to bring this mixer to the flat; that this mixer was found to have been used in the process of manufacture - it was described as being found full of heroin - and that there was very clear evidence of manufacturing taking place in the premises. There was evidence to the effect that the drugs were openly scattered in various parts of the flat and that a good quantity was clearly in the last stages of the process of full manufacture.

29. He has attempted to raise a defence here which was never raised at trial. He was represented by Counsel. He was fully advised by the trial judge as to his position at the end of the prosecution's case. He was then given an adjournment to consult his Counsel as to what course of action he would take. He decided to give no evidence nor to call witnesses. It is too late now to raise explanations which could have raised at trial.

30. The strictures which we have found it necessary to levy against the directions on the burden of proof do not apply with anything like the same force to the charge of possession for the purpose of unlawful trafficking as against the third defendant. There was no attempt at trial to rebut the presumptions which clearly arose. We think in the circumstances here that the jury must inevitably have come to the same conclusion in respect of him despite the non-directions.

31. We give leave to both appellants to appeal against their convictions on the count of manufacturing and treat the hearing of the application as the hearing of the appeal.

32. The result is that, in respect of the first, and only, count against CHAN Siu Man the conviction is quashed and the sentence set aside. In respect of the same count upon which the third defendant was convicted, that conviction is also quashed and the sentence set aside.

33. In respect of the second count concerning only the third defendant, we would refuse leave to appeal, the conviction is confirmed.

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34. After hearing Counsel it was directed that both the first and the third defendants be retried as to the first count upon the same indictment.

35. The application of the third defendant to appeal against the sentence of twelve years' imprisonment imposed upon him on the possession count was granted and the appeal allowed to the extent that the sentence was reduced to ten years.

Li, J. A.:

36. I am in entire agreement with my brother Silke as to the reasons why we quash the conviction. However, I am in doubt whether the decision in Yeung Yee Man ⁽¹⁾ is binding upon this Court.

37. Section 45 provides that:

The plain reading of this section is sufficient to show that when a person is found escaping from or is in a set of premises in which a drug - be it heroin, opium or marijuana - is being prepared, it is presumed, until the contrary is proved, that he is manufacturing either heroin, opium or marijuana as the case may be.

38. It is as simple as that. It is only a presumption of fact converted into a statutory presumption. It may well be that in the case of possession, without sub-section (3) of section 47, a person who is presumed to be in possession has no good knowledge that that which he possesses is a drug.

39. It is a different matter when it comes to manufacture. Manufacturing is different from possession. It is a deliberate act of making. He is presumed to be manufacturing the drug. I would hesitate to suggest that he might be mistaken for manufacturing chocolate.

40. It is only to that extent that I find it difficult to understand the decision of Yeung's case^(l). In case I am wrong, those who are given the responsibility of amending the Laws of Hong Kong may wish to do something about it.

(1)    [1977] H.K.L.R. 172

Representation:

O'Reilly Mayne, Esq., Q.C. & R.K. Sujanani, Esq. instructed by Messrs.     Lawrence Pang & Co. for the 1st Appellant.

2nd Ap pellant in person.

Michael Jennings, Esq. for Crown/Respondent.