Cheng Chung Kan v. The Queen

Case No.CACC 253/1977

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000253/1977

IN THE COURT OF APPEAL
on appeal from the High Court

	1977 No. 253
	(Criminal)

BETWEEN
	CHENG CHUNG KAN	Appellant
	and
	THE QUEEN	Respondent

-----------------

Coram: Huggins, Ag. C.J., Pickering, J.A. and McMullin, J.

Date of Judgment: 16th August, 1977.

-----------------

JUDGMENT

-----------------

Pickering, J.A.:

1. We allowed this appeal against conviction upon a charge of manufacturing dangerous drugs and now give our reasons.

2. The appellant is the owner of a flat on the 9th floor of No. 7, Sands Street which flat contains a number of bedrooms. One of those rooms was let to a seaman who, upon taking the tenancy, changed the lock of the door to the room; thereafter the room was kept locked in the absence of the tenant and there is no evidence that the appellant ever had a key to the new lock and no key was ever found. On the 20th August, 1976 the police raided the premises being let into the flat by the appellant. The door to the locked room was broken open and inside the room were found many articles referable to the manufacture of dangerous drugs. The appellant's conviction for manufacturing resulted.

3. The first ground of appeal arises from the direction by the learned judge in regard to Section 45 of the Dangerous Drugs Ordinance Cap. 134 which section reads as follows:

"Where it is proved that a person was found in, or escaping from, any premises, or the part of any premises, in which -

	(a)	a dangerous drug was being manufactured; or
	(b)	equipment or material which is referable to the manufacture of a dangerous drug was found,

such person shall, until the contrary is proved, be presumed to have been manufacturing or doing an act preparatory to the manufacture of the dangerous drug."

4. At the conclusion of the summing up there occurred a dialogue between a juror and the trial judge which appears in the transcript as follows:

"	JUROR:	If the defendant was positioned in the premises, the presumption became that he was or had been engaged in the manufacture of drugs, and therefore he had to produce rebuttal. In this case, does the locked room being leased to someone else constitute the premises, or does the whole of the flat constitute the premises?
	COURT:	The whole of the flat.
	JUROR:	The whole of the flat?
	COURT:	Including the locked room.
	JUROR:	Including the locked room, even if it is leased to somebody else?
	COURT:	Yes, you see, if he is in premises - 'Where it is proved that a person was found in any premises, or the part of any premises, in which equipment or material which is referable to the manufacture of a dangerous drug was found', so the premises are that flat, and he was found, if you believe all the evidence, he was found in part of that."

5. Mr. Bleach, for the appellant, argued before us that this was a misdirection and that where there exist what he termed "premises within premises" and equipment is found in the inner premises the presumption can only apply to persons found in or escaping from those inner premises. Were it otherwise, the argument went, the presumption would attach to each occupier of a block of flats in just one of which equipment referable to the manufacture of dangerous drugs had been found. For this view counsel derived assistance from the case of Ng Kam Yuen and others v. The Queen⁽¹⁾ which concerned charges of having injected a dangerous drug contrary to Section 22(2)(a) of the then Dangerous Drugs Ordinance. In that case the appellants were arrested in a raid on a Chinese tenement flat and apparatus fit for injection of dangerous drugs was found on the balcony, as were drugs. None of the appellants were identified as having been found on the balcony. It was contended for the Crown that the definition of "place" in the then Section 22(2)(a) applied both to the balcony and to the entire flat wherefore the entire flat was presumed by Section 22(2)(d) to be a divan until the contrary was proved and by Section 22(2)(e) the appellants were persons found in a divan and so presumed to have been injecting a dangerous drug therein.

6. That argument failed it being held that the balcony where the offending articles were found was a "place" and only the balcony fell within the definition in Section 22(2)(d) so as to be presumed a divan. Whereas in that case what was under discussion was the nature of a "place" what we are concerned with in the present case is the nature of "premises" but much of the ratio decidendi of the earlier case is directly in point in a consideration of the nature of premises. Thus Reece, J. said:

"And, to take the argument to its logical and clearly absurd conclusion, let us suppose, for example, that a person in a room on the top floor of Alexandra House were found in possession of any article of equipment or apparatus fit for the injection of dangerous drugs, would it be argued that every person in Alexandra House would fall within the ambit of paragraph (e) of sub-section (2) of section 22 of the Dangerous Drugs Ordinance? I can scarcely imagine that such an absurdity could be contended for."

7. I would add in parenthesis that the reference was to the old, now demolished Alexandra House which in 1960 was the most recent pride and joy of the architectural profession and the construction industry in Hong Kong. Today the example taken would probably be Connaught Centre but the principle remains the same; it is merely that we have bigger buildings nowadays. It was on the tip of the pen to employ the facile phrase "bigger and better" but candour was ever desirable from the Bench.

8. In the same case Blair-Kerr, J. said:

	"In one sense, a floor is a self-contained entity. In one sense also the entire building consisting perhaps of six floors is one entity, and the term 'house' could certainly be applied to both the floor and the entire building. In such circumstances, where a 'house' is one of many houses, the sum total of which could also be described as 'a house', I am quite satisfied that it was never the intention of the Legislature that the prosecution should be in a position to opt for which entity best suited their purpose, thereby rendering liable the occupants of the top floor of a building for the criminal acts of those situated, say, on the ground floor. Now, although in architectural design a floor may be intended as the self-contained home of one man or one family, we know that in Hong Kong today that seldom is the case; therefore, do not the same considerations as apply to the case of a building consisting of several floors not also apply today in Hong Kong to one floor? A family living in a cubicle may or may not have any knowledge of what is happening in another room of the floor, and they certainly have no more right to interfere with or control the behaviour of their neighbours in another part of the floor than a sole occupant of one floor has in regard to the occupant of another floor.
	The geographical limits of the 'place' to which the finding of incriminating articles is referable must bear some relation to the purpose for and use to which the place is put. If a floor is the home of a number of families each leading their own separate lives, forced by circumstances to share parts of that floor, (or, it may be occupying a portion of the floor let as a separate dwelling) it is very doubtful whether such a floor must necessarily, for the purposes of the definition of 'place' in the Dangerous Drugs Ordinance, be said to be a house (i.e. one house) or a number of 'houses'. In a criminal enactment, such a doubt should of course be resolved in favour of the subject."

9. Later the same learned judge said:

	"... was it the intention of the Legislature that the finding of incriminating articles in any one room of a floor should, in all circumstances at the option of the prosecution, be attributable to the entire floor?
	I do not think so. If that was the intention of the Legislature then I think that it should have been made absolutely clear in the Ordinance that the finding of an incriminating article in any spot on or pertaining to a floor (be it a balcony, cupboard, lavatory, hole in the wall or otherwise) should in all circumstances be attributable to the entire floor and that every person on that floor would be answerable for the presence of that article."

10. Mills-Owens, J. put the matter thus:

"The correct approach as I see it is to apply to each case in which it is sought to rely on the presumption that facet of the definition of the word 'place' which may be said fairly and reasonably to arise in the particular circumstances of the case. ................... To choose a wider facet of the definition than is warranted by the circumstances of any particular case is, in effect, to widen the ambit of the presumption; to enlarge the scope of the presumption by indirect means; and thus to step outside the proper limits of construction. If drugs are found, at the time of entry by the police, in a room then the definition may be relied upon to show that the room is a 'place' for the purpose of giving rise to the presumption that the room is a 'divan' and to the further presumption of the guilt of anyone found there. But the definition may not, as I see it, be relied upon to enlarge the scope of the presumption; to extend it, for example, to persons outside the room, by showing that a 'place' may be in some circumstances comprise a whole building or floor containing a number of houses. If it had been intended that the presumption should so apply it was for the Legislature to say so expressly. Here the offending articles were found in a room, namely the balcony of the premises, being a 'place' within the terms of the definition, and it is not permissible to discard that facet of the definition in order to adopt a wider facet which is not really in point in the circumstances of the case."

and later:

"In the present case, on the contrary, the object sought to be achieved by the prosecution is to enlarge the area of the 'place', namely from the area of the balcony to the area of the whole building or, at least, the whole floor, and thus to extend the scope of the presumption of guilt, which is a very different matter. Certainly a definition of the greater may include the lesser, but hardly a definition of the lesser include the greater."

11. It will be observed that the same thread of reasoning runs through all the judgments and we consider that thread equally applicable to a consideration of the undefined term "premises".

12. Further support for the interpretation advanced on behalf of the appellant is to be derived from Section 45 itself which contains reference not only to being found in or escaping from "any premises" but continues "or the part of any premises" terminology which suggests a distinction, for the purpose of the presumption, between the entire building or floor and a self-contained unit within the building or floor. If the intention of the Legislature were that the presumption should extend to the absurdity of the Connaught Centre example, we envisage that the section would not have been left in this form but would have been amended in the same way that the presumption relating to keys was amended in 1971. Prior to that date the relevant parts of the provision referred to "the keys of the place or premises or the part of any place or premises" in which a dangerous drug is found. The section was repealed by Ordinance No. 46 of 1971 and replaced by a provision which included a similar reference to keys but which omitted the definite article before the word "part". Commenting on the repeal, in the case of Reg. v. Chan Siu Ching and others,⁽²⁾ Huggins, J., as he then was, said:

"The omission of the definite article from Section 47(1)(d) by the most recent amendment leaves no possible doubt that the Legislature's intention is to cast the net very widely indeed and to make the existence of an intervening locked door to which the defendant had no key relevant not to the raising of the presumption but to the rebuttal of the presumption."

13. Whether the presumption would arise in respect of all the holders of keys to the outer door of a block of flats in one of which dangerous drugs had been found it is not necessary for us to decide in this case. It is arguable that it would, although that presumption would normally be so easily rebutted that one hopes the presumption would never be relied upon in such circumstances. Certainly where, as in Section 45, the definite article exists, it cannot be said that the presumption extends beyond the self-contained unit where suspect equipment is found.

14. We are of the view that the judge's response to the juror's question amounted to a serious misdirection which led the jury to a verdict of guilty on the basis that the presumption contained in Section 45 applied to the appellant in respect of the materials found in a locked room to which, on the evidence, he had no access.

15. Mr. Duncan, for the Crown, contends however that had the contrary direction been given the jury must still have found the appellant guilty on the basis of other materials found in that part of the flat of which he was in occupation. These consisted of a plastic grip containing a metal boiler, a metal stand with three sheets of tin wrapped in brown paper, one plastic bag containing white powder, one bamboo sieve containing a cloth, a length of rubber hosing and a plastic spoon, two plastic phials, one set of scales, three metal bowls and a gas cylinder. On some but not all of these subjects there was found less than 0.1 gramme of salts of esters of morphine. We are concerned of course with a presumption not of possession of dangerous drugs but of manufacturing. Whether or not these items were referable to the manufacture of the dangerous drugs was a question of fact for the jury and, from the nature of the question put to the learned judge by the juror it appears certain that what was exercising the minds of the jury was the contents of the locked room and that they did not regard the materials found in the other portion of the flat as necessarily referable to the process of manufacture of dangerous drugs. In the result we are unable to say that had the direction been the correct one the jury must nonetheless inevitably have found the appellant guilty on the basis of the materials found in the flat but outside the locked room.

16. Accordingly the application for leave to appeal against conviction succeeded on the first ground of appeal.

17. There was however a second ground of appeal which was to the effect that the verdict was unsafe and unsatisfactory in that the learned trial judge failed to direct the jury that Section 45 does not contain a presumption that the appellant knew he was manufacturing a dangerous drug. In this connection reference was made to the case of Yeung Yee Man v. The Queen⁽³⁾ where it was held that whilst the presumption is of the manufacture of the dangerous drug yet in order to succeed the Crown must prove that the accused knew that what was being manufactured was in fact a dangerous drug and that such knowledge must be proved independently of the presumption. Yeung Yee Man v. The Queen was a very strong case in that in the summing up to the jury in that case the learned judge used expressions which could be read to suggest that where the presumption applied it included a presumption that a person found "in or escaping from" is to be presumed not only to have been manufacturing a dangerous drug but also to have knowledge of that fact whereas the defence of one of the appellants in that case had been that he was quite unaware of the nature of the substance being manufactured. In that case the necessity for a clear direction as to knowledge of the substance being manufactured was an imperative and that, we consider, is likely to be so in any case in which the defence is "I did not know what the substance was". Having said that we are far from saying that a direction that the knowledge of the nature of the substance being manufactured must be proved by the Crown independently of the presumption is necessary in every case. In many cases there will be ample evidence from which knowledge can be inferred and such knowledge would be implicit in the jury's understanding of the facts. In the ordinary case it will be a matter of common sense that a person carrying out or presumed to have been carrying out the process of manufacture will have known what he was manufacturing.

18. We did not consider that the verdict was unsafe and unsatisfactory by virtue of the alleged wrong direction as to proof of knowledge but, as we have said, the application succeeded upon the first ground of appeal.

Representation:

John Bleach (Haldane & Co.) for appellant.

P.N. Duncan for Crown/respondent.

(1) 1960 H.K.L.R. 349.

(2) 1974 H.K.L.R. 493.

(3) Criminal Appeal 1316 of 1976.