Chan Siu Shing and Others v. The Queen
Read the full judgment text of CACC 330/1974 on BabelCite. This Court of Appeal judgment.
1. The four Appellants were jointly indicted on one count of manufacturing dangerous drugs contrary to s.6 of the Dangerous Drugs Ordinance and on two counts of possession of dangerous drugs for the purpose of unlawful trafficking. No point is taken that the particulars in the first count do not allege that the manufacture was unlawful. The case arose out of a raid by police officers on a flat in Yuet Wah Street, Kowloon. The evidence for the prosecution was that on obtaining access to the flat
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CACC000330/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 330 OF 1974 -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 4th December 1974. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The four Appellants were jointly indicted on one count of manufacturing dangerous drugs contrary to s.6 of the Dangerous Drugs Ordinance and on two counts of possession of dangerous drugs for the purpose of unlawful trafficking. No point is taken that the particulars in the first count do not allege that the manufacture was unlawful. The case arose out of a raid by police officers on a flat in Yuet Wah Street, Kowloon. The evidence for the prosecution was that on obtaining access to the flat the police found the first three Appellants in the corridor and all wearing pyjamas. In one room in the flat was found all the equipment necessary for the manufacture of diacetylmorphine hydrochloride, at least part of which was actually in use at the time. In the same room was found a mixture containing 25.19 kilogrammes of morphine hydrochloride and a mixture containing 3.804 kilogrammes of salts of esters of morphine. In another room was found a mixture containing 9.1888 kilogrammes of salts of esters of morphine and a solution containing 0.2 gramme of salts of esters of morphine. While the police were at the premises the fourth Appellant appeared outside and was arrested. She was found to be in possession of keys which enabled her to open the front doors of the flat. Each of the inner rooms had a lock on the door and keys to those locks were not found on her. The evidence was that she was an amah who had been working in the flat for some few months but that she was never allowed in to the two rooms. In one of the two rooms was found a suitcase belonging to the fourth Appellant, in which were keys to each of the two rooms, but the fourth Appellant contended that the keys were put there without her knowledge. She said that the suitcase was brought out to her whenever she wanted it. 2. Of the grounds of appeal which have been argued some concern general matters relevant to the appeal of both the second and the fourth Appellants against their convictions. The first Appellant pleaded Guilty to all the charges and he and the third Appellant appeal only against sentence. Counsel for both Appellants against conviction contend that the verdicts were unsafe and unsatisfactory and they rely on a combination of several matters in support of that contention. The first complaint of the trial, however, is one which can stand by itself and which relates to the presence of a juror who, before she was sworn, said that she was prejudiced and that rather than let the Accused go she would be inclined to convict them out of hand. That was a most irresponsible remark and even in the context of what she had previously said suggested that she would convict without regard to the evidence which might be led. Indeed, it was such an outrageous remark that no one seems to have taken it very seriously: counsel for the defence did not challenge the juror (despite a hint from the juror herself that they might wish to do so) and the judge seems to have assumed that she was really doing no more than express a very strong view that if the Accused were guilty they should be severely punished. The juror indicated that she was willing to put her prejudice aside and, presumably, to try the case on the evidence, and thereafter proceeded to take the oath to do just that. It was not until the following day, after some of the evidence had been heard, that one of the counsel sought to object to the jury empanelled. The objection was supported by one of the other defence counsel and opposed by a third. The judge was invited to proceed with six jurors and no one suggested that the whole jury be discharged. The judge said he was satisfied that the juror in question would make every endeavour to bring in a fair verdict in the case and declined to discharge the one juror. In our view the matter was throughout one within the discretion of the judge and this Court should be slow to intervene. If the juror's remark was to be taken seriously she was equally as unfit to assist in the administration of justice as a juror who formed a view of the guilt of a defendant at the outset of a trial. Had she been challenged for cause it is improbable that the judge would have disallowed the challenge, but no case has been cited to us which persuades us that a fair trial was impossible. However, the juror was not challenged and as we are not persuaded that a miscarriage of justice actually occurred on the ground that the juror was prejudiced s.83.0 of the Criminal Procedure Ordinance is a complete answer to the point now taken. Even so, if there were other irregularities at the trial or deficiencies in the evidence, the presence of this juror might possibly be considered in deciding whether the verdicts were unsafe and unsatisfactory. 3. The next ground of appeal relates to the direction as to the burden of proof. The learned judge said:
This passage, and in particular the first sentence, is open to the objection that it suggests there are cases where the burden of proof is not completely on the Crown and that one of those cases is where a presumption is raised by statute. In truth the burden of proof is always on the Crown to establish the guilt of a defendant beyond all reasonable doubt. Guilt is something which has to be inferred from primary facts and the burden of proving beyond reasonable doubt such of those primary facts as have to be proved is, equally, always upon the prosecution. Sometimes one or more of the primary facts from which guilt could be inferred do not have to be proved at all because a statute prescribes that upon the fulfilment of prescribed conditions those facts are to be presumed. In so far as those conditions consist of the proof of facts the burden of proof is, once more, upon the prosecution and the standard of proof required is proof beyond all reasonable doubt. The effect of a presumption which is not rebutted is, therefore, to allow an inference of guilt to be drawn from facts which would not otherwise justify such an inference: the fact presumed does not have to be proved beyond all reasonable doubt but the guilt of the accused does. Later in the passage cited the judge told the jury that when a presumption arose the Accused "has not got to prove anything beyond reasonable doubt as the Crown would normally have to do" (emphasis supplied). Once more the implication was that this case was different in that the prosecution did not have to prove its case beyond reasonable doubt. To a lawyer it would doubtless have been clear what the judge was seeking to convey but a jury might have been misled. The present case was in truth no exception to the general rule stated by the learned judge: the position was that the prosecution had to prove the guilt of the fourth Appellant upon the second and third counts beyond all reasonable doubt and to do that had to establish either by strict proof or by presumption that she was in possession of the drug. That element of the offence would be presumed provided that (1) it was proved beyond all reasonable doubt that she had "in her possession or under her control the keys of [a] place or premises or part of [a] place or premises in which [a] dangerous drug [was] found" and (2) she failed to rebut the presumption. Merely to tell the jury, without elaboration, that if possession, custody or control of the keys was "established" the presumption would arise did not warn them of the high degree of proof required to raise the presumption, although we think that the conditions in which the presumption would arise were sufficiently indicated by the judge's reading the relevant sections. While we think the direction was not strictly accurate we are satisfied that, if it was sufficient for the purpose of raising the presumption to show that the fourth Appellant was in possession of the keys to the flat, no possible injustice can have resulted from this defect because it was never contested that she had the keys to the flat in her possession. This is clearly a case where the proviso to s.83(1) of the Criminal Procedure Ordinance should be applied. The final sentence of the passage cited is also objected to. In our view this objection is unfounded, although when the words are seen in typescript they can be thought to give the appearance of a misdirection. If one replaces the relative pronoun, the sentence reads:
The distinction between proof beyond reasonable doubt and proof on a balance of probabilities could have been drawn more distinctly, but it is impossible for us to say that the direction was wrong or that it was totally insufficient. Again, although it is common practice to attempt an explanation of "beyond reasonable doubt" where that phrase has been used, it is questionable whether such explanation will materially assist the jury, and, provided the general tenor of the charge is to the effect that the jury must be sure of the guilt of the accused before they convict, no explanation is required. In the present case we see no reason to think that the jury could have been uncertain as to the requirement of the very high standard of proof. 4. The learned judge did not attempt to define possession, custody or control or to distinguish between the three. It is contended on behalf of the fourth Appellant that this was a material omission. Before any presumption of possession could arise under s.47 it had to be proved that she was in possession, custody or control of keys. The Crown contended that it was enough if she had the keys to the flat, but Mr. Yu submitted that that was not enough and that it must be proved that she had the keys to the rooms where the drugs were found. Whichever is correct, if the presumption of possession did arise the jury had to decide whether that presumption was rebutted and it is argued that they could not decide that question unless they were told what possession meant. 5. I will deal first with the issue relating to the keys. The defence relied upon WONG Sze-yuen v. Reg. 1963 H.K.L.R. 68, where it was held that a mesne landlord of a tenement in which dangerous drugs were found was not ipso facto presumed to be in possession of those drugs by virtue of the equivalent then in force of s.47. The defendant there was not proved to have in his possession, custody or control the keys of the flat or of the room in which the drugs were found. We do not think the case helps the fourth Appellant. That leaves the questions whether the presumption arises only where the key found in the possession of a defendant gives unhindered access to that part of the premises where the drugs are found. Applying that question to the present case, was it enough that the fourth Appellant had the keys to the front door if someone else had the keys to the rooms where the drugs were found and she did not, the learned judge not having directed the jury that different principles might apply according to whether they found that she had or had not possession of the keys to the inner rooms? The word "premises" is not defined in the Ordinance and its use where no lands or tenements have previously been described is strictly an abuse. "Premises" could relate to a bed space or to the New Territories or to an even larger tenement, according to the context, but in the context of this statute it is on the face of it meaningless. Presumably the Legislature was intending to say "tenement". The Ordinance has been three times amended since the 1950 Edition of the Laws. The amendment by Ordinance No. 10 of 1960 need not concern us. In 1968 the relevant parts of the provision referred to
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". On consideration we do not think that omission affects the present case. Previously if drugs were found in a flat possession of the keys of the flat or of the room in which the drugs were found would raise the presumption. Now it could be argued that it was sufficient to prove possession of the keys of the flat or of any room in the flat, whether the drugs were found therein or not. The rationale of any presumption based upon possession of keys must be that such possession is some indication of possession or control of any place or thing to which the keys give access. Therefore it could be said to be unfair to apply such a presumption where a defendant has possession of the keys to a flat but has no key to the inner locked door behind which dangerous drugs are found. However, the Legislature has never said that the presumption shall arise from possession of "the keys of any part of a place or premises in which a dangerous drug is found or, where that part is not locked, the keys of the place or premises". The omission of the definite article from s. 47(1)(c) 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 has no key relevant not to the raising of the presumption but to the rebuttal of the presumption. It should be added that when the police arrived on the scene in this case, as at various times when the fourth Appellant was in the flat, the inner doors were not in fact locked. 6. From all this it follows that a presumption of possession of the drugs found in the two rooms did arise against the fourth Appellant. However, it is still contended that the jury could not decide whether or not that presumption had been rebutted in the absence of a clear direction as to the meaning of "possession". If that word were used in the Ordinance in a technical sense that argument might have much force, but it has been held by this Court that it does not. In WU Him-fong v. Reg. 1968 H.K.L.R. 685 Mills-Owens, J., delivering the judgment of the Court, said
The judge then referred to CHAN Sun v. Reg. (1956) 40 H.K.L.R. 55, where it was pointed out that the word "possession" in s. 10 of the Dangerous Drugs Ordinance did not have the same meaning as at Common Law. Clearly to be guilty of this offence the defendant must have knowledge of his relationship with the drugs, but knowledge is inherent in the ordinary man's conception of possession. In our view any attempt to define possession was more likely to confuse than to assist the jury and the omission of such an attempt was certainly not a fundamental non-direction. 7. It was an important distinction between the case against the fourth Appellant and that against the other Accused that the fourth Appellant was not present at the time of the raid on the flat, for it was common ground that no presumption could arise against her under s. 45: if she was to be convicted on Count 1 it had to be proved and not presumed that she was concerned in the offence, either as a principal in the first degree or as a principal in the second degree. The case for the Crown was that she wilfully encouraged the offence by continuing to work as an amah in the flat when she must have been aware that the manufacturing was going on, whether or not she actually had a hand in the manufacturing process. In the first instance the learned judge did fail to make clear the distinction between her case and that of the other Appellants but at the end of the charge counsel for the Crown drew his attention to the omission and the judge thereupon gave an accurate direction on the point. Counsel for the fourth Appellant submitted, however, that this last minute addition was not sufficient to bring home to the jury the significance of the distinction. It is enough to say that we think it was sufficient. 8. The learned judge left it to the jury to decide whether or not the evidence established that the fourth Appellant was wilfully encouraging the other Appellants to commit the offence of manufacturing dangerous drugs: it is urged that no encouragement was to be inferred from the mere fact that she worked in the flat as an amah, whether or not she knew what was going on. We think that was eminently a matter for the jury. The judge very clearly set out the defence of the fourth Appellant, which was that although she had been working at the flat for over three months she thought that the flat was being used for the manufacture of some sort of medicine and had no idea that dangerous drugs were being produced. The learned judge said that the point which the jury had to decide was a fine one but in our view it was open to them to find that what the fourth Appellant was doing was an encouragement which rendered her guilty. 9. At the trial evidence was adduced that the second Appellant and his wife had under their control substantial assets, the purpose being to show that the second Appellant was engaged in activities which produced greater profits than a person of his standing would be able to make from a legitimate business. Objection was taken that such evidence had not been given on the depositions, but an adjournment was not asked for. It was open to the judge to allow additional evidence to be led prior to the closing of the prosecution case and we are not persuaded that we should interfere with the exercise of his discretion. Despite a very substantial amendment of the Notice of Appeal the question of the admissibility of that evidence and the question whether it should have been excluded in the exercise of the judge's discretion were not put in issue upon the appeal, but ...(illegible) briefly argued. We cannot agree that the evidence was irrelevant and therefore we think it was admissible. It is contended that the prejudicial effect of the evidence so far out-weighed its probative effect that it should have been excluded. It is clear the judge appreciated that prejudice might arise. In the course of the argument in the court below he asked wryly whether it was not getting rather dangerous in Hong Kong to own anything and in his ruling he remarked that the jury would no doubt have in mind that Chinese people in Hong Kong do manage to make a substantial amount of savings out of modest resources. (Subsequently he expressly directed them to bear in mind the evidence of the second Appellant's wife that the cash found in her possession was made up of savings.) He did not think that the prejudice would out-weigh the probative value and we certainly would not interfere with the exercise of his discretion. 10. The only other matter with which we think it necessary to deal in this judgment is the contention that the learned judge failed to warn the jury of the danger of placing any weight on the evidence of the first, third and fourth Appellants in so far as they implicated the second Appellant. As framed in the grounds of appeal the complaint was based upon the social and family relationships between the first, third and fourth Appellants of which evidence was given, but as a result of an observation from the bench counsel further based his argument on the fact that these co-defendants were alleged accomplices. It is this further argument to which we should shortly refer. Counsel for the Crown frankly concedes that on the face of it, if the basis for the rule that a jury should be warned where an alleged accomplice gives evidence as a witness for the prosecution is that he may give false evidence to secure some advantage to himself, the same warning ought to be given where the same witness gives the same evidence as part of his own defence. However, it would seem that the rule does not extend to requiring a warning where the unfavourable evidence is given by an accomplice in the course of the defence: Russell (1968) 58 Crim. App. R. 147. Such a warning may be desirable from the point of view of the defendant who is implicated by the evidence, but the judge has to consider the interests of all the parties and the giving of the usual warning might be very prejudicial to the defence of the defendant giving the evidence and even to the defence as a whole. Therefore the true position is that where a defendant gives evidence unfavourable to his co-defendant the judge has a discretion whether or not to give the usual warning, just as he has where the accomplice called by the prosecution gives evidence which is wholly favourable to the defence (Reg. v. Peach 1974 Cr. L. R. 245) or where it is partly favourable and partly unfavourable (Reg. v. Royce-Bentley 1974 Cr. L. R. 308). In the present case the judge was under no duty to give a warning. 11. The Appellants also seek leave to appeal against their sentences of 10 years' imprisonment. For anyone directly engaged in the manufacture of dangerous drugs or who by his possession of such drugs is materially assisting the trafficking in them such a sentence is amply justified. So far as the first three Appellants are concerned, therefore, we see no reason to interfere. The position of the fourth Appellant is very different. The jury's verdict is equally consistent with their having found her to be a very minor participant as with her having been a person directly engaged in the manufacture. It was for the judge, within the framework of the verdict, to decide the facts relevant to sentence and he described her as an "underling". That could mean that she was playing a minor but none the less active part in the process of manufacture. Even so we think it would have been right to make some distinction between her and the others in the matter of sentence. In the absence of any clear finding, however, we think the proper course is to assume the facts to be those most favourable to this Appellant, namely that she merely encouraged the others by carrying out her work as an amah in those premises when she was aware of what they were doing. On that basis a sentence of 2 years' imprisonment would be appropriate and we allow her appeal and substitute an order accordingly. The applications of the other Appellants for leave to appeal against sentence are dismissed. 4th December 1974. Representation: |