A1. Yu Tit Hoi and Others V.The Queen
Read the full judgment text of CACC 620/1981 on BabelCite. This Court of Appeal judgment was delivered on 14 December 1982.
1. On the 8th of July 1981, at about 10 p.m., a police party under Chief Inspector Thompson forced an entry into Flat E on the 4th Floor of No. 101 Wu Sung Street, Yaumati. Three men and one woman were discovered within. A quantity of salts of esters of morphine was scattered around the flat and its contents. There were utensils, including pots, basins, stoves, plastic bags, a bottle of hydrochloric acid and a miscellany of bottles, scrapers, brushes, ladles etc. These articles were seized and l
|
CACC000620/1981 Headnote
_________ Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A. Date: 14 December 1982 ____________ JUDGMENT ____________ McMullin, V.-P. : 1. On the 8th of July 1981, at about 10 p.m., a police party under Chief Inspector Thompson forced an entry into Flat E on the 4th Floor of No. 101 Wu Sung Street, Yaumati. Three men and one woman were discovered within. A quantity of salts of esters of morphine was scattered around the flat and its contents. There were utensils, including pots, basins, stoves, plastic bags, a bottle of hydrochloric acid and a miscellany of bottles, scrapers, brushes, ladles etc. These articles were seized and later examined. The four inmates were arrested and were subsequently tried in the High Court upon an indictment containing two counts: one, manufacture of a dangerous drug contrary to the provisions of s.6 of the Dangerous Drugs Ordinance; two, possession of 415.37 grammes of heroin. 2. On 19th June 1981 the four defendants were convicted on both counts: by the unanimous verdict of the jury on the possession count and by a majority of five against two on the other count. 3. The three male defendants subsequently applied for leave to appeal against conviction. The first and second withdrew their applications on 10th May 1982. The case came on for hearing before this Court on 11th May. By then the Court, having considered the papers and the transcript, and the grounds of appeal which by then had been lodged by counsel on behalf of the 3rd defendant, Tsoi Chi-yuen, considered that there were points fit to be argued under those grounds as well as upon a ground suggested by the Court itself. 4. Subsequently the first applicant, Yu Tit-hoi, and the second, Sin Kwai-tong, were given leave to pursue the original applications and legal aid was extended to all three. The fourth defendant, a woman Lam Suet-sin, has never sought leave to appeal against either conviction or sentence. 5. The case for the Crown rested on the testimony of a large number of police officers, including those who actually entered the flat at Wu Sung Street on a night of 8th July 1980, and two other officers who had carried out surveillance work at various points on Hong Kong Island and in Kowloon earlier on the same day. The latter evidence purported to show that the three applicants had been in each other's company in the earlier part of the day. The second applicant, Sin, was said to have left a restaurant on the island carrying a plastic bag. He then entered a car and drove with the bag to Hung Hom where he picked up the 1st and 3rd applicants, Yu and Tsoi. Yu was then also carrying a plastic bag which was described as having something like a box inside it. The car was followed and Tsoi was seen to get out at Canton Road. Yu and Sin then drove to 101 Wu Sung Street where Yu got out and carried the two plastic bags up to the flat on the 4th floor where somebody within permitted him to enter. A little later Yu came down to the street and went up to another car driven by a woman who gave him two more plastic bags from the boot of the car. These he carried up to flat E. 6. This evidence was strongly attacked by the defence. There were only dock identifications of the defendants by the constables and the Judge told the jury to attach little weight to the surveillance evidence. 7. This doubt did not attach to the police raiding party. The several witnesses called by the Crown gave substantially the same account of the forcible entry into Flat E, and of what was observed upon entry and thereafter. What this came to was that Inspector Thompson, when the door bell produced no results, charged the door down. Sin and Tsoi were said to have attempted to hold the door closed and were seen scurrying back towards a desk in the sitting room at which the woman Lam was seated. The first applicant, Yu, was caught in the toilet and arrested there by inspector Thompson. There was a basin heavily contaminated with what later proved to be salts of esters of morphine beside Yu on the floor and there was a substantial amount of the drug upon his body. Examination of the toilet produced a number of plastic bags some showing traces of heroin later on the U-pipe of the toilet was excavated and in it was found a large quantity of salts of esters of morphine - some 200 grammes out of the whole quantity found in the flat. It was in solution with paraffin oil which had apparently been used in an endeavour to flush the drug down the toilet, the water supply to which had been turned off by the police shortly before the raid. 8. Some plastic bags, each contaminated with salts of esters of morphine were found in other places in the flat and there were many other articles of the kind already described discovered in the sitting room and in the kitchen and at other places in the flat. Most of these articles showed traces only of the drug. 9. An important feature of the evidence was that there was nothing to show that the making of heroin was actually in progress at the time of the raid, or even during the earlier part of the day prior to the raid. Although two kerosene stoves were found they were cold at the time of discovery and were said in any event not to be capable of producing sufficient heat for one essential stage in the process. The police did not find any morphine blocks, acetic anhydride, or heroin base which are amongst the essential materials for manufacture of heroin. Nor was there found any of additives which are customarily used to dilute the finished product prior to sale. 10. All three applicants gave evidence. It is not in dispute that the third, Tsoi, who engaged in money lending, was the tenant of the flat in Wu Sung Street which was occupied by his mistress, Lam, the 4th defendant. Tsoi said that at about 1 p.m. on 8th July the 1st defendant, Yu, phoned him at his wife's flat and asked him for permission to store some of his belongings at the Wu Sung Street flat, the reason being that Yu was redecorating another flat into which he was proposing to move. Tsoi went on to say that he was invited to come and look at this flat by Yu and he did so. While he was there the 2nd applicant, Sin, rang to ask Yu for a loan of money. He agreed to discuss it with Sin. He and Yu went down to the street and shortly after that Sin came up in his motor car and picked them up. Thereafter the 3rd applicant described a series of manoeuvres performed by the motor car carrying himself and the other defendants which corresponded closely to the description given of the car's movements by the police officers who were on surveillance duty. These manoeuvres culminated in Tsoi being dropped at Argyle Street at his own request to attend to some business in the area. He said that he told the others to go on to Wu Sung Street ahead of him. Thereafter he phoned the Wu Sung Street flat and told Miss Lam to expect the 1st and 2nd applicants and he told her also that he had given the 1st applicant permission to store some of his belongings at her flat. When he got to the flat it was about 9 p.m. in the evening. He found Yu and Sin and Miss Lam there. There was a meal in which the other two applicants shared at his invitation. When the meal was finished he was discussing the loan with Sin when the police arrived. He denied all knowledge of the drugs and said that he had not tried to prevent the entry of the police Lam gave similar evidence describing how the 1st defendant had carried some parcels into the flat and put them in the bedroom. 11. Yu and Sin gave a very different account of the matter. They told similar stories of having gone separately in the late evening of the 8th to raise loans from Tsoi. They denied all knowledge of the drugs and denied having seen each other or Tsoi earlier in the day or having been together in Tsoi's company in Sin's car. They denied having known each other previously. 12. On the appeal Mr. Westbrook represented the 1st and 3rd applicants and Mr. Niamatullah the 2nd. Grounds 1, 2 and 4 of Mr. Westbrook's grounds are concerned with the contention that the evidence was inadequate to support the charges as laid. Counsel puts the matter in two ways. The Judge, he said, should have upheld the submission of No Case either because the evidence was insufficient to raise the presumption in s.5 or on the alternate basis that the Crown's own evidence was effective to rebut it even if it could be said to have arisen. 13. The particular direction to which exception is taken is as follows.
14. What is wrong here, Mr. Westbrook says, is that the Judge has overlooked the fact that s.6 of the Ordinance, notwithstanding that its side-note refers simply to "manufacturing", nevertheless has created two distinct offences. That section reads as follows.
15. Counsel then points to the terms of s.45:
16. These two provisions, Counsel says, can most sensibly be construed by recognising that two quite distinct presumptions are created by s.45, corresponding to the two offences created by s.6. Thus, before anyone found in or escaping from the suspect premises can be presumed to have been manufacturing dangerous drugs, the evidence must establish that the manufacturing was actually in process at the time of discovery (clause (a) of each section); where the evidence only shows the existence of equipment or material referable to manufacture, the presumption is that an act preparatory to manufacture has occurred. 17. In the present case it is clear - indeed it seems to be conceded - that nothing was actually being manufactured when the police broke in. The Judge specifically advised the jury that the prosecution were looking to the presumption arising from the materials and equipment to support the charge. If Mr. Westbrook is right, the charge is radically defective. But even if the charge were framed as the doing of an act preparatory to manufacture, Counsel would still object on the ground that the evidence was insufficient to show that. 18. To this we must return but the primary point is of wider concern. It is an attractive argument and it was persuasively presented. Has it substance? 19. Over many years this has been very heavily frequented legislation, constantly under survey in the courts, and yet there does not seem to have been any earlier decision precisely on the point. The significance of the corresponding dichotomies of s.6 and s.45 has not, so far as we are aware, been directly considered. 20. The nearest we come to a decision on the point is R. v. Lee Kee & another, 1976 H.K.L.R. 58. Two persons were found in premises in which there was a large quantity of dangerous drugs together with equipment which, on the testimony of the Government Chemist, could only have been used for manufacturing dangerous drugs. The argument for the defence was that the presumption of manufacturing did not arise because the process was completed at the time of arrest. Pickering, J., delivering the judgment of the Full Court, rejected this argument. Following an earlier decision of the Court when the same contention had been advanced he said: (p.60)
21. Of this Mr. Westbrook says, firstly, that the case differs on its facts since the articles found were unequivocally referable to manufacture of dangerous drugs (and to that we must return) but primarily he argues that the decision is in any event wrong insofar as it purported to lay down a general rule in the words quoted above. This is so, he maintains, precisely because the Judge did not realize that the offences of manufacturing and of doing an act preparatory to manufacturing are separate offences. Had he realized that, Counsel says, he would not have distinguished the probanda under the section in the way he did, and further, he would not have held that two quite different bodies of proof would establish the same offence, viz : manufacturing. 22. Counsel's argument as to s.6 finds support in the then definition of "manufacture" in s.2:
23. This definition was the law both at the time of the alleged offence and at the time of trial. Since we have here a quantity of the end-product and no evidence that actual manufacture was in process at, or even within a reasonable time before, the police raid, it is certainly arguable that para. (a) of s.6 does not cover the facts. It may be that the situation would have been different if, at the time of the trial, the now amended version of that definition had been in force. The definition which was amended only in 1982 now reads:
24. It is plain that in the definition as it then stood the emphasis is wholly on the existence of an actual process. Read with s.45 the obvious intention is to fix persons in or escaping from permises with knowledge of what had manifestly been going on about the time of discovery by police or other persons. In the present case the evidence not only did not support the disclosure of the actual carrying-on of any process relating to the dangerous drugs but is in fact wholly adverse to any such conclusion. 25. The prosecution were thus thrown back on (a) of s.45 which Mr. Dick, relying on Lee Kee, maintains is apt to cover the circumstances disclosed upon the evidence here. These were very unusual circumstances. What they seem to amount to is that no process of manufacture was actually going on in those premises at the time of the police intrusion on 8th July or even before the police invaded them so that it is possible that the heroin had been manufactured elsewhere and then taken to the flat at No. 101, Wu Sung Street, while the absence of additives was an indication that the final treatment had not yet begun. We understand from Counsel for the Crown that he had hoped to show that a process of some kind was in train involving the use of the equipment and chemicals which were found. In the event the evidence was insufficient for that purpose. He has restricted his argument to the contentions (a) that the apparatus and other materials seized by the police are plainly referable to the manufacture of heroin and (b) that this is sufficient evidence in itself of manufacture to support the charge. 26. The difficulty with this argument is that Counsel would concede that s.6 creates two distinct offences and further that s.45 sets up two presumptions. It is indeed difficult to interpret these provisions in any other way. The legislature could very easily have made its intention clear, if such had been the intention, by including, either in s.2 or in s.6, a formula which would have included acts preparatory within the meaning of "manufacture". That was not done and we must conclude that it was not intended that every act of preparation however remote must be regarded as equivalent to manufacture within the meaning of the definition in s.2 as it stood until the end of 1981. But if remoter acts are not within the definition, where is the line to be drawn? That definition is obviously concerned with what might be described as the physics and chemistry of manufacture, rather than with the preparatory arrangements of the putative manufacturers. It seems reasonable to think that the separate provision for preparatory acts was intended to cover the latter not only where the preparations are remote but also in cases where, as in the present case, the actual process of manufacture is not in progress and there is wanting the necessary equipment and material to initiate it. It is of course not necessary to prove that the equipment was in actual use. In Lee Kee the actual process was over and the finished product, heroin, as well as the essential equipment for its production were quite sufficient to show that the accused had been manufacturing at or about the time when they were arrested. It was not suggested in that case that the charge - manufacturing - was wrong. The point was not argued and the case therefore cannot be regarded even as persuasive authority for the view that s.6 creates only one offence. We see no reason to differ from the view expressed by Pickering, J. in the passage on which Mr. Dick relies. Where materials or equipment referable to the manufacture of the drug are found, they can be used as evidence of a preparatory act which will be sufficient to sustain the charge in the absence of countervailing evidence sufficient to rebut it. That was how Pickering, J. regarded the matter in Lee Kee, where he directly identifies the discovery of equipment and materials referable to manufacture as showing an act preparatory to manufacture rather than manufacture itself. 27. Even were there no other objection to the convictions on the first count, what we have said already of the charge would compel us to set aside the convictions upon that count. It would not be open to us to substitute convictions for doing acts preparatory to manufacturing. See. 83A of the Criminal Procedure Ordinance does not cover the case since there is no provision in that Ordinance or elsewhere which would permit us to substitute alternate verdicts under s.6. 28. In any event the evidence, taken at its highest, was equivocal. Mr. Westbrook did not contend that the proper test must be that the materials or equipment seized should be solely referable to the manufacture of heroin. Clearly that would go too far. But the articles must in their nature, number and combination be unequivocally capable of use for the manufacture of the drugs in the charge. It need not be shown that all the material and equipment necessary to produce heroin was discovered just so long as there is evidence that such articles as are found are of a kind familiarly employed for that purpose. Expert evidence will usually be crucial on this point. Such evidence was given by Mr. Choi, the Government Chemist in the present case. It was from the Crown's point of view, distinctly negative. Notwithstanding the seizure of a large number of utensils most of which bore traces of salts of esters of morphine; the partsealing of the front door and of some ventilation embrasures with newspaper and the presence in the sitting room of two paraffin stoves together with some sieves and basins of various kinds; the discovery of a small Chinese weighing instrument on a tiled canopy outside one of the windows and of some other items in various other rooms which the prosecution regarded with suspicion, Mr. Choi was unable to give a definite opinion as to what uses this collection of articles had been or could be put to. He said that they might all have had legitimate household uses and although Counsel for the Crown patiently and with some ingenuity, but without conspicuous success, endeavoured to elicit from him an opinion supportive of the charge, he was clearly unwilling to commit himself. Having been taken carefully through the several stages in the process of producing heroin Counsel eventually put to him the straight question: "Can you say whether any process in the making of diacetyl morphine hydrochloride had been taking place in the flat?". To this the answer was a blunt "No". 29. Later, in reference to the equipment generally, it was asked: "At any rate, as far as those items are concerned, could they be referable to the manufacture of heroin?". He replied: "The finding is difficult for any conclusive directions (sic) to be reached." Pressed further on this he said it was possible. Later in cross-examination (p.391 of the transcript) he appears to agree that the sole item discovered which might be connected with the preparation of heroin was a bottle of concentrated hydrochloric acid but he also agreed with the suggestion that even that might have had domestic uses. 30. Dealing with this evidence the Judge warned the jury that the prosecution were relying on the presumption which would arise from the discovery of articles referable to the manufacture of the drug. And then he said: "Even this is not without its difficulties as many, indeed, most or perhaps all, of the articles which were found in the flat had on the most unfavourable interpretation put upon them a dual purpose and possession of such articles could be consistent with innocent intentions." 31. It is, perhaps, not surprising that the verdict on the manufacturing count was by the minimum majority necessary for conviction. While it might be too much to say that the Judge ought to have withdrawn that charge from the jury we are satisfied that suite apart from what has been said already as to the validity of the charge, the convictions on this count cannot be regarded as safe or satisfactory. 32. Mr. Niamatullah for the 2nd applicant supports the arguments advanced before us by Mr. Westbrook. Insofar as the 1st count is concerned the conviction of the 2nd applicant stands on no firmer ground and it too must go. 33. The lst applicant, in the course of the hearing, informed us through Counsel that he no longer applies for leave to appeal against this conviction on the second count, i.e. possession for the purpose of trafficking. 34. There remain for consideration two other grounds upon which Mr. Westbrook assailed the conviction of his clients on the first count but which are relevant also to the second. One of these, but not the other, is also supported by Mr. Niamatullah. 35. The point which is common to both Counsel and to both charges arises from exchanges between the Judge and the foreman of the jury when, at the conclusion of the summing-up, the latter sought further directions from the Bench. The trial Judge very sensibly suggested that the jury's question should be submitted to him in writing for him to consider. That is very often the preferable course since such questions are not infrequently couched in terms which are so ambiguous or imprecise that the real nature of the difficulty is not at once apparent. Where that happens the Judge, in his anxiety to give immediate assistance, may understand the query to be other than it is and may consequently return an answer which may not meet the real sense of the question. Unfortunately the foreman in the present case though clearly and tactfully advised to consider the point of difficulty with the other jurors and to put the matter in writing, pressed on with his question and, understandably, the Judge seemed to have felt obliged to listen without further urging him to put the question in writing. What emerged thereafter appears (p.50 of the summing-up) as follows:
36. At that point the Judge, having made what sense he could of that long and involved question, perceived, no doubt rightly, that the jury wanted to know whether the evidence supporting the manufacturing charge could be relied on to sustain the possession charge, even if they were not satisfied that manufacturing had been proved. To that query, the Judge gave a direction in unimpeachable terms, warning the jury that the charges were quite distinct and that different considerations would apply to each The foreman was however not satisfied that he had made the difficulty clear and he proposed to illustrate it with a concrete example. 37. The Judge replied: "I think we better leave it as it is. I hope that I have made myself clear". He then retired. 38. The point in these exchanges which has caused us concern arises from the fourth of the Foreman's contributions in the passage set out above: "If we find them not guilty beyond reasonable doubt...etc." Mr. Dick asked us to dismiss this as a mere slip of the tongue, not to be construed as a misunderstanding, at that late stage and after several correct directions, of the burden of proof. The jury had indeed at earlier points in the summing-up - and also in Counsel's speeches - been fully and clearly instructed on this vital matter. It must however be kept in mind that the jury were concerned with the varying burdens of proof which in most cases under this Ordinance have to be explained by the Judge. It would be unfairly speculative to dismiss this remark as being either a mere verbal slip or else as being the result of mistaken interpretation or transcription. Where, at the end of the addresses, something is said which betrays a possible misunderstanding of this fundamental matter, an appellate court must be slow to assume that the directions were nevertheless perfectly understood. Coming as it did, in a question which was not completed, the Foreman's remark was evidently overlooked both by Counsel and the Judge, the latter breaking in before the question had been completed. At any rate, it was never taken up and corrected. An acquittal on the manufacturing charge was evidently under consideration at that stage and ultimately the conviction was by a bare majority. In those circumstances we could not regard the convictions of the 2nd and 3rd applicants as safe or satisfactory on either count. 39. Mr. Westbrook takes another point for the 1st and 3rd applicants to which Mr. Niamatullah for the 2nd applicant demurs. The defences of the 1st and 2nd applicants were in conflict with that of the 3rd. Counsel for the 2nd applicant sought in cross-examination to shake the testimony of both the 1st and 3rd applicants by putting to them matter which was derived from statements which those defendants had made to the police but which were not in evidence. One of these statements (that of the 3rd applicant) had been ruled inadmissible on the trial of the voluntariness issue. And the other (that of the 1st applicant) was virtually in the same position since Counsel for the Crown, following indications from the Bench in the course of the trial of this issue, did not tender it in evidence. 40. So far as the 1st applicant is concerned we are satisfied that there is nothing in this point. Timely objection to this line of questioning was taken by Counsel who then appeared for the 1st applicant. By then only one question had been put to the applicant which contained a reference to something he was alleged to have said to the police which Counsel suggested differed from his evidence. Upon the objection being taken, the jury were excluded, and the point was argued before the Judge alone. He ruled in effect that no questions should be asked which would have the effect of revealing the existence of the statement which had not been, put in evidence. Mr. Westbrook concedes that any damage would in this instance have been minimal. 41. It is otherwise with the case of the 3rd applicant. When he was being cross-examined, Counsel for the 2nd applicant sought to elicit from him an admission that contrary to his evidence he had told the police something which substantially differed, in that it directly supported the case being put forward on behalf of the 2nd applicant and incidentally that of the 1st also. This time there were several exchanges between Counsel and the Bench before the jury were sent out. By then it had become clear that Counsel for the 2nd applicant was putting to the witness questions which were plainly derived from a statement of the witness recorded by the police prior to the trial. This is made certain by a sudden interjection by the Foreman saying: "Excuse me. Is there in fact a statement that has been made on this? Because if there is, we haven't seen it yet." 42. Mr. Westbrook relies on Treacy [1944] 30 Cr. App. Rep. 93 and Rice [1963] 47 Cr. App. Rep. These cases are clear authority against using an inadmissible statement against the maker of it or against a co-accused of the maker. In the latter case it was said that while information contained in such a statement may be used in cross-examination, the fact that such information is derived from an induced or inadmissible statement must not be revealed to the jury. There is not, as Counsel conceded, any authority directly stating that this rule applies also where Counsel for a co-defendant - as distinct from prosecuting Counsel - seeks to use such a statement. Mr. Niamatullah for the 2nd applicant suggested, if somewhat tentatively, that a different rule should apply between co-defendants. He points out that his client was as gravely disadvantaged by not being able to contradict the evidence of the other applicants as they might have been by any adverse inference which the jury might have drawn from reference to their statements. No doubt that is so. We cannot however find any good reason for drawing such a distinction. Although a Judge trying the issue in voir dire proceedings is concerned solely with voluntariness, the principle which underlies the use of that procedure is that an induced statement may be false. There can be no reason effective to disallow reference to such a statement which would not equally apply to every party to a criminal trial. It may be however that in circumstances such as those which developed in the present case, injustice to any co-accused could be prevented by discharging the jury in respect of the prejudiced defendant and ordering a separate trial. An application to discharge was in fact made by Counsel for the 3rd applicant at the trial in this case but this was refused. No doubt the Judge felt that no damage sufficient to warrant such an order had been done. We find it difficult to say that no prejudice could have affected the case of the 3rd applicant whose credibility may well have been undermined by these questions. On this ground also we would find it necessary to intervene. 43. The result is that treating the hearing of the applications as the hearing of the applicants' appeals, we must set aside the conviction of all thereon the first count and those of the 2nd and 3rd applicants on the second count. Representation: Simon Westbrook (D.L.A.) assigned for 1st and 3rd appellants. A.M. Niamatullah (D.L.A.) assigned for 2nd appellant. J.W. Dick for Respondent/Crown. |