The Queen v. Ho Ping-shung (D1)

CACC000048/1986

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Headnote

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Dangerous Drugs Ordinance - presumptions - burden of proof where presumptions apply - direction to jury - "on a balance of probabilities" - "more likely than not" - the use of word such as "likely" or "likelihood" is wrong.

BETWEEN

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Coram: Yang, J.A., Power & Penlington, JJ.

Date of hearing: 27th June, 1986.

Date of delivery of judgment: 27th June, 1986.

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JUDGMENT

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Yang, J.A.:

1. This is an application for leave to appeal against conviction. The Applicant was convicted on a charge of manufacturing a dangerous drug and a charge of possession of dangerous drug for the purpose of unlawful trafficking.

2. The First Ground of Appeal relates to the Judge's direction to the jury on the burden of proof in a situation where a presumption in the Dangerous Drugs Ordinance applies. The complaint is that in respect of the manufacturing charge the Judge in directing the jury used words such as "likely" or "likelihood" without using the words "on a balance of probabilities" or the phrase "more likely than not". There are authorities for saying that where a direction on burden of proof is given in a case where a presumption applies it is always better to use the time honoured phrase "on a balance of probabilities", or to use the phrase "more likely than not".

3. With respect we follow the decisions in Law Chi Keung (1983) Nos. 90 and 290 Criminal Appeal and Chan Siu Man (1983) No. 154 Criminal Appeal. Quite clearly, the Judge was wrong in not following these decisions in his direction in respect of the manufacturing charge. However, when he came to deal with the charge of possession, be correctly used the phrase "on a balance of probabilities". We do not think that the mistake made in respect of the manufacturing charge impinged on the correctness of the direction in respect of the possession charge.

4. On the first ground, the conviction on the manufacturing charge cannot stand, but we see no reason to doubt the validity of the verdict on the possession charge. The second ground and the third ground are matters which we have considered. We do not need to go into these grounds in detail save to say that we find no merits in them. Ground 4 concerns a statement by a person named Tang who was found in the same premises as the Applicant. The complaint is that Tang's statement is hearsay and should not have been introduced in evidence by the police sergeant who spoke with Tang. In the light of the way the defence was built up and the strong evidence on the part of the Crown against the accused, we do not think there is anything in that ground.

5. For these reasons we would treat the application as an appeal, allow the appeal on the manufacturing charge and dismiss the appeal on the possession charge.

Penlington, J.:

6. As I said in Law Chi Keung I am of the view that the use of the word "likely" is, if anything, more favourable to an accused than the phrase "more likely than not, there is now very strong authority to the contrary and clearly that phrase, or the traditional one of "on a balance of probabilities" must be used in directions on the evidential burden where the statutory presumptions arise.

Representation:

Mr. A.W. Sedgwick, Q.C. and Mr. John Lee (David K.W. Tsang & Co.) for D1

Mr. G.J.X. McCoy for D.P.P./Respondent