Szeto Yin-wah v. The Queen

CACC000402/1982

Criminal law - dangerous drugs - possession for purpose of unlawful trafficking - Government Chemist's certificate under s.25 of Evidence Ordinance that substance found was "Cannabis" - drug scheduled as "Cannabis" - certificate was prima facie evidence that the substance was Cannabis as defined in s.2 of Dangerous Drugs Ordinance.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Silke & Barker, JJ.A.

Dates of hearing: 29 September 1982 and 12 October 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. Two points were raised by the Applicant's Notice of Appeal, but only one has been argued before us. It is submitted that a certificate, issued by the Government Chemist and admitted in evidence pursuant to s.25 of the Evidence Ordinance, to the effect that a substance found in the possession of the Applicant was "Cannabis" is not sufficient evidence to justify a finding that the Applicant was in possession of a dangerous drug.

2. The argument runs like this. Although by virtue of Part I of the First Schedule to the Dangerous Drugs Ordinance "Cannabis" is a dangerous drug (see item 12) and it is an offence to be in possession of a dangerous drug without a licence, s.2 of the Ordinance defines "Cannabis" as "

"any plant, or any part of any plant, of the genus cannabis which contains tetrahydro-cannabinol and the viable seeds of the plant of the genus cannabis."

Therefore, it is said, it must be proved that any part of a cannabis plant found in the possession of a defendant in fact contains tetrahydro-cannabinol and, as there was here no direct evidence that this substance was present in the bag found in the Applicant's possession, the conviction was bad. It is conceded that the appeal has no merits but counsel is, of course, bound to take on his client's behalf any technical point which he thinks is arguable.

3. Whilst we recognise that not every part of the herb cannabis contains tetrahydro-cannabinol, we are satisfied that there was sufficient evidence upon which the learned judge could properly convict. Had the First Schedule listed as item 12 "any part of the plant cannabis which contains tetrahydro-cannabinol", Mr. Mullick's argument, based upon the fact that the description "Cannabis" is capable of a botanical as well as a pharmaceutical connotation, would have been unanswerable. That is not what the Legislature has said: the scheduled drug is "Cannabis" and the Government Chemist has certified that "Cannabis" is what he found. The District Judge took the view that in so certifying the Government Chemist must be assumed to have had in mind the definition of "Cannabis" in s.2. That would be correct if the only possible purpose of an analysis was one connected with the Dangerous Drugs Ordinance. It is to be noted that no other possible purpose has been suggested: even prohibition of the cultivation of the herb is to be found in this Ordinance: see s.9. We therefore think that the judge was justified in holding that the certificate should be interpreted as meaning "Cannabis as defined in s.2 of the Dangerous Drugs Ordinance". In any event, the certificate shows that "Cannabis" was found and "Cannabis" was the scheduled substance. The certificate was merely prima facie evidence and, if the Defendant wished to challenge the certificate on the ground that it expressed an opinion based upon botanical considerations rather than pharmaceutical considerations, it was for him to require the presence of the Government Chemist for cross-examination.

4. We obtained no assistance from Reg. v Goodchild (1977) 1 W.L.R. 473 or from Reg. v Goodchild (No. 2) (1977) 1 W.L.R. 1213 (G.A.); (1978) 1 W.L.R. 578(H.L.)

5. Application for leave to appeal is dismissed.

12th October 1982

Representation:

Mullick (K.Y. Woo & Co.) for Appellant.

Duckett for Crown/Respondent.