Chau Sau Shuen v. The Queen

CACC000310/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 310 OF 1971

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Coram: Full Court (Blair-Kerr, Acting C.J. and Huggins, J.)

Date of Judgment: 30th July 1971

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JUDGMENT

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Huggins, J.: The Appellant was convicted before the District Court of possession of a dangerous drug for the purpose of unlawful trafficking and was sentenced to three years' imprisonment and a fine of $50,000 or one year's imprisonment in default. An order was also made for forfeiture of the vehicle in which the drugs were found - presumably under s.56 of the Dangerous Drugs Ordinance. The appeal is against conviction and sentence.

2. The substance of the evidence was that the police stopped the Appellant while he was driving a car in Fa Yuen Street, Kowloon; that he put the gears into reverse, but that a Police Sergeant removed the ignition key; that the Sergeant then searched the boot of the car and found a cardboard orange box and a paper carrier bag which were suspected to contain raw opium; that when he was cautioned the Appellant wrote in the Sergeant's notebook - "the raw opium was brought to Kowloon by me for someone"; and that the Government Chemist later certified the contents of the box and parcel as being 20.18 kilogrammes of raw opium. The defence was that a Mr. Chan, whom the Appellant could not identify but who was said to have been a former customer of the Appellant, asked the Appellant to drive Mr. Chan and some oranges from Hong Kong to Mongkok; that the Appellant opened the boot and Mr. Chan put the box and bag inside; that they drove to Kowloon; that Mr. Chan alighted in order to find a relative to carry the oranges and that while the Appellant was looking for a place to park the car he was stopped by the police; that the Appellant did not know what was in the box and bag and that the statement which was recorded in the Sergeant's notebook was dictated to the Appellant by the Sergeant.

3. The real basis of the first point taken on the appeal against conviction was that the certificate of the Government Chemist upon which the prosecution relied as proof of the nature of the goods found in the car was wrongly admitted in evidence. The certificate was tendered under s.23D of the Evidence Ordinance, the material part of which reads as follows:

Mr. Litton, for the Appellant, concedes that the certificate was in the prescribed statutory form and that it purported to be signed by the Government Chemist. What is contested is that it purported to be a certificate as to an article or substance "submitted to him for chemical examination or analysis". As counsel points out, this section is substantially different from s.44 of the Dangerous Drugs Ordinance, under which certificates of analysis were formerly admissible. First, he says, the section is applicable to both criminal and civil proceedings and not merely to proceedings under the Dangerous Drugs Ordinance and he suggests that this inhibits any wide interpretation. However, the more important difference is that the words "purporting to be a certificate as to any article or substance submitted to him for chemical examination or analysis", which I have already referred to, did not appear in the old provision and Mr. Litton contends that strict proof of the purpose for which the goods were submitted to the Government Chemist was essential. We do not think that counsel for the Crown was able to meet that argument: indeed, we do not think he sought to do so and to this extent we are content to accept Mr. Litton's interpretation as correct.

4. The case for the Respondent is that the prosecution did sufficiently establish the purpose for which the goods were submitted to the Government Chemist and that the learned judge was justified in finding, as he must have done, that the goods were submitted for chemical examination or analysis. The goods seized were handed to a detective police constable, who conveyed them to the Government Laboratory on the day following the seizure. He left them there in two sealed packets. They were returned to him on 31st March in two sealed packets together with a certificate, which, as I have said, was in the statutory form. At first Mr. Litton submitted that there ought to have been either evidence from the constable as to the purpose for which he took the goods to the Government Chemist or evidence from the Government Chemist (whether oral or in the certificate itself) as to the purpose for which they were submitted to him: he says that the Legislature obviously visualised the possibility of an examination or analysis other than a chemical examination or analysis. Later he shifted the full weight of his argument on to the second alternative, he then contending that the material words in the section should be read as meaning "purporting to be a certificate as to any article or substance purportedly submitted to him for chemical examination or analysis". We cannot accept the second alternative. In the first place it was manifestly the intention of the Legislature to provide a means whereby the results of a chemical examination or analysis could be proved without (as a general rule) the necessity of bringing the Government Chemist to court. That intention would be frustrated if he had to attend in order to prove the purpose for which the goods were submitted to him. Secondly, the Legislature itself prescribed the form which was to be used and if it had been intended that the certificate should state the purpose for which the goods were submitted it would have been drafted accordingly. To include a statement of that purpose by way of an addition by the Government Chemist to the form at present prescribed might be regarded as a substantial deviation from the prescribed form: see s.37 of the Interpretation and General Clauses Ordinance. In our view the Legislature must be taken to have meant precisely what it said and the most satisfactory method of proving the purpose for which goods are submitted to the Government Chemist is either by producing the request for chemical examination or analysis, if that request is made in writing, or by asking the person who delivered the goods to the Government Chemist, or the person who caused them to be so delivered, why they were delivered. Unless and until either s.23D or the prescribed form is amended we think the safest course will always be to lead such evidence.

5. Was the omission to lead such evidence in the present case fatal? Counsel for the Respondent has submitted that the Judge was entitled to take judicial notice of the fact that the substance was submitted for chemical examination or analysis because so many cases have been before the court where such was the purpose that it must have been the purpose why the goods were so submitted in the present case, and he relies upon Reg. v. Jones⁽¹⁾. It seems to us that the issue is not so much whether one can properly take judicial notice of the intention of those responsible for the submission of the goods to the Government Chemist (which we think is doubtful in the extreme) as whether the facts proved justified the inference that the intention was that the Government Chemist should perform a chemical examination or analysis. Apart from the bare fact of seizure of the goods, their submission to the Government Chemist and their return with the certificate the following matters are relevant: there was evidence that the Police suspected the goods were dangerous drugs: they formally charged the Appellant with possession of an unspecified quantity of an unspecified dangerous drug for the purpose of unlawful trafficking: when the charge against the Appellant was laid in the District Court, after the certificate had been delivered to the Police, the particulars of the drug alleged therein were in accordance with the result of the Government Chemist's chemical examination or analysis as stated in the certificate. We are clearly of opinion that it is fanciful to suggest that the goods were submitted to the Government Chemist for any purpose other than a chemical examination or analysis and we think that the basis for the admission of the certificate was established.

6. The second point taken relates to an alleged misdirection by the learned judge. I say "alleged misdirection" although counsel for the Respondent was prepared to concede that there was a misdirection. The learned judge said:

"The accused further said that he the accused put the two parcels in question into the boot thinking they contained oranges and not knowing they contained heroin".

Mr. Litton accepts that the reference to "heroin" was a slip and that it was of no consequence. What he complains of is that the judge said the accused put the parcels into the boot whereas the evidence clearly was that Mr. Chan handled the parcels into the boot. (The judge made no express finding whether Mr. Chan existed or not). The importance of the alleged misdirection is said to be that the judge placed great reliance upon the Appellant's assertion that he did not smell the raw opium, an assertion which was less likely to be believed if the Appellant actually handled the goods himself, for they would be directly under his nose. It is true that the judge mentioned the fact that "the smell of opium was quite noticeable in court although the opium was then wrapped in additional polythene bag". We also noticed the smell in court, but, even assuming that under no circumstances could the smell be mistaken for that of packed oranges, it has to be remembered that the car was out of doors and there was no evidence that the Appellant had ever smelt raw opium before. Obviously the smell would be in nothing approaching the concentration which would exist in the confined space of the boot after the drugs had been there for half an hour or more. Counsel bases his contention that the judge did place great reliance upon this matter of the smell on the fact that he said that even without the presumptions of knowledge and possession which arose by virtue of the statute he "would have inferred from the evidence as a whole that (the Appellant) knew what was in the boot and knew that it was raw opium". If the judge, as he said, thought that the Appellant "did not begin to prove on any balance of probability that he did not know the nature of the goods he was carrying" we cannot believe that his disbelief was based substantially on this aspect of the evidence. Accordingly we would, if necessary, apply the proviso to s.81(2) of the Criminal Procedure Ordinance.

7. In fairness to the learned judge we must add that we are not persuaded that there was a misdirection at all. Although the Appellant did not say he himself handled the parcels into the boot his evidence was that he opened the boot for Mr. Chan to do so and to that extent the Appellant was playing a part in the deposit of the goods in the boot. We think the wording of the judgment is consistent with that understanding of the evidence.

8. It was sought on the appeal against sentence to challenge the order for forfeiture of the motor car, which was admittedly the property of the Appellant. We raised the question whether the order for forfeiture formed part of "the sentence" appealed against (it was not mentioned in the Notice of Motion on appeal although it was referred to in a Notice of Additional Grounds of Appeal) and there was some discussion of the matter. Counsel for the Crown conceded that there had never been any application by the Crown for forfeiture, although the power of forfeiture was mentioned (possibly the fact that an order of forfeiture might be made was thought to be relevant to the assessment of sentence), and he did not oppose the application that the order be set aside. In those circumstances, on the clear understanding that this case should not be treated as a precedent for regarding orders of forfeiture under s.56 as part of a "sentence", we were disposed to set aside the order of forfeiture in the present appeal.

9. It was then submitted that the sentence of imprisonment and fine was manifestly excessive having regard to the general trend of sentences for this offence. The learned judge gave reasons for the view which he took and we are unable to say that he came to a wrong conclusion.

10. These appeals are dismissed save that the order for forfeiture is get aside.

Representation: