The Queen v. Lam Ming-kwong and Others

CACC000266/1983

IN THE CURT OF APPEAL

BETWEEN

Coram: Leonard, V.-P., Li & Yang, JJ.A.

Date: 8th December, 1983

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JUDGMENT

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Li, J.A.:

1. The four applicants were convicted of manufacturing dangerous drugs on the 14th of July, 1982. They all applied for leave to appeal against conviction and sentence. In view of the course that we take, I shall not refer in detail as to the evidence.

2. The main line of evidence advanced by the prosecution was that on that material day, a police party rushed into the premises known as Flat 228 of Block 26, Sau Mau Ping Estate. there they found the door barricaded. They forced open the door and the iron grill. When they entered, they found the four applicants crouching near to a burning stove with a pot of solution steaming upon it. There was strong acetic smell in the premises. They were all arrested. Heroin base was found in the premises. As a result they were charged with manufacturing dangerous drugs and convicted.

3. The defence was that all the applicants were there by coincidence. It is not necessary to set out the allegations of each separately. Suffice it to say that all four of them alleged they were there for an innocent purpose. They were all in underwear at the time. That was the sum total of the evidence apart from, of course, the chemical evidence and the finger-print expert evidence.

4. Of the grounds of the appeal filed we find two to be of substance. Despite the evidence against them, only the 2nd applicant gave evidence. As a result, in his closing address, prosecuting counsel made this remark at page 166. He said:

5. The first point is that, by innuendo, prosecuting counsel practically told the jury that the 1st, the 3rd and the 4th applicants did not elect to give evidence. In short, counsel commented on their silence. This is precisely what he was not entitled to do. Section 54(1) of the Criminal Procedure Ordinance is specific.

6. In the case of YU Yuk-kwong and Others v. The Queen ⁽¹⁾ the learned chief Justice, citing section 54(1) of the criminal Procedure ordinance said:

7. This has been followed in CHAN Pui-keung v. The Queen ⁽²⁾ when similar remarks were made and the crown at once conceded that there should be at least a new trial.

8. That only affected the 1st, 3rd and 4th applicants. The 2nd applicant did give evidence. The improper remark could not have affected him. However, there was another complaint.

9. The second point is that in the course of his summing up, the judge referred to matters of presumption. The presumption arose because the four applicants were found on the premises where various equipments were set up for manufacturing of dangerous drugs. Section 45 of the Dangerous Drugs Ordinance provides:

"Where it is proved that a person was found in, or escaping from, any premises, or the part of any premises, in which a dangerous drug was being manufactured, 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."

It was quite proper for the judge to direct the jury that such a presumption would arise in the circumstances of the present case. At page 196, he used these terms:

"If it is proved to your satisfaction beyond any reasonable doubt that these defendants knew that a dangerous drug was there being manufactured, an onus then falls upon the defendant to show you on what is called the balance of probabilities that they did not know that dangerous drugs were being manufactured at the premises. Essentially that is the point, members of the jury, which you will have to decide."

Unfortunately, this is not the only issue that the jury had to decide. The presumption having arisen, what the jury had to decide was the applicants had rebutted the presumption that they participated in the manufacturing or that they knew what was being manufactured was drugs. The defence in this case was that they did not take part and that no manufacturing was in progress in their presence. It is complained that the judge did not put the issue properly but adopted a formula which was a contradiction in terms. He used the formula that if it was proved beyond reasonable doubt that the defendants knew then the defendants had to show on the balance of probabilities that they did not know. He repeated the same mistake at page 205 when he said:

"As I say, the presumption of manufacturing dangerous drugs arises if you find those matters proved beyond all reasonable doubt, to which I have already referred, and the onus will shift to the defendants on a balance of probabilities for you to decide whether they did not know that dangerous drugs were being manufactured."

Again at page 209, he said:

"Basically, it is you have got the four defendants at the flat If you are satisfied beyond all reasonable doubt that the defendants knew dangerous drugs were being manufactured at the premises, then the onus shifts to the defendants to show you on a balance of probabilities that they didn't know that dangerous drugs were there being manufactured. In other words, the presumption, I will just read it again ............''

Then he read the provisions in section 45.

10. We are of the opinion that such direction is insufficient in that practically all the applicants said they were there by coincidence for an innocent purpose: that when they arrived manufacturing was not in process; that not only did they not know, they never participated in the offence at all.

11. We have considered the proposition whether to apply the proviso. Having regard to this misdirection which affects all four applicants whether the jury would inevitably convict all or any of them in the absence of such misdirection would be a matter of speculation. For this reason we cannot apply the proviso.

12. We therefore allow the appeal but order a trial de novo.

Representation:

1st & 4th applicants in person

Mr. Sujanani (Laurence Pang & Co.) for 3rd applicant

Mr. Clifford Smith (Oliver & Driver) for 2nd applicant

Mr. Dale (Crown) for respondent