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CACC000104/1984
[Direction on burden of proof which lies on defence when presumption arises.]
IN THE COURT OF APPEAL
BETWEEN
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The Queen
and
LAM Ming-kwong
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Coram: Roberts, C.J., Yang & Barker, JJ.A.
Date: 18 APR 1984
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JUDGMENT
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Barker, J.A.:
1. The applicant applied for leave to appeal against his conviction on a charge of manufacturing a dangerous drug.
2. The relevant. facts may be shortly stated. On the 14th July 1982 the police raided a flat, Room 228, Block 26, Sau Mau Ping Estate, Kowloon. There was abundant evidence to show that drugs were being manufactured therein. There were four men, one of whom was the applicant, in the main room and all were in their underclothes.
3. The jury had therefore to consider the presumption raised by section 45(1) of the Dangerous Drugs Ordinance, Cap. 134 which reads:
"Where it is proved that a person was found in ........ any premises .......... in which -
(a) a dangerous drug was being manufactured........
such person shall, until the contrary is proved, be presumed to have been manufacturing... the dangerous drug."
4. The Judge summed up on the application of this presumption as follows:
"So the law says this, 'Well, you were there, you must have known that manufacturing was going on, you must have known who was doing it. It is not unfair to put upon you the burden of saying, 'Well, X was doing it or Y was doing it', and putting the burden on that man to show that the likelihood was that it was not him.'
But he does not have to prove that beyond a reasonable doubt. He only has to show that it is likely - that it is probable that-it was not him.
So the real question here is: does the evidence, or any part of it, show that it is likely that the 1st or the 3rd defendant was not manufacturing the dangerous drug?
....... The 1st defendant has elected to give evidence, and if you thought that what he said was true, namely that the manufacturing was - if there was manufacturing - going on without his knowledge, without his being involved in any way, if you believe that, if you think it is likely to be true, then you must acquit him."
5. The sole question argued on the appeal was whether ` this direction was. a proper one. This question had previously been considered by the Court of Appeal in The Queen v. Law Chi-keung and others(1).
6. To quote from the judgment in that case:
"It is argued that the over all effect of these directions (which were in respects similar to those in the present case) was not such as to indicate clearly to the jury what was the true burden of proof on the Applicants, namely proof on a balance of probabilities. To use the words of Lord Diplock in Kwan Ping-bong v. Reg. 1979 1 H.K.L.R. 1, 6, a jury is bound to infer possession of drugs in a flat from possession of the keys to that flat
(1) Cri. App. 90 & 290 of 1983
'unless they are satisfied that on the balance of probabilities it is wrong. So they must draw it even though they think it is equally likely to be right as to be wrong.'
Thus it is the balance of likelihood and not merely the likelihood of a defendant's story which is material. It is apparent from the passage cited that something may be 'likely' without being 'more likely than not'. On the one hand to leave the issue to a jury on the basis of 'likelihood' could be unduly favourable to the defence. However, it is a word of such imprecision that a jury might, ,on the other hand, interpret it as requiring more than just a balance of probabilities.... We would be reluctant to hold that any particular form of words must be used to describe to a jury the degree of proof required to rebut a presumption and we say only that the phrase 'established on a balance of probabilities' has withstood the test of time in the same way as 'proof beyond all reasonable doubt'. Both are brief and unambiguous and need no further explanation, and judges and magistrates would be well advised to use them. It is not enough to say simply that something must be 'probable' or 'likely'."
7. We strongly endorse the adjuration contained in the penultimate sentence of the above citation.
8. We can see no distinction between Law Chi-keung's case(1) and the present. It must follow that the direction given to the jury by the trial judge as to the burden of proof involved in rebutting the presumption was wrong.
(1) Cri. App. 90 8: 290 of 1983
9. It was urged upon us that, even if this be so, this was a proper case for the application of the proviso. In Kwan Ping-bong v. Reg. (op. cit.) Lord Diplock said:
"A misdirection as to the onus of proving an essential fact in issue at the trial seldom provides an appropriate case for the application of the proviso."
10. We respectfully agree. We did not consider that there were in this case features which would justify a departure from the normal rule. We therefore declined to apply the proviso.
11. In the result, we granted the application for leave to appeal against conviction, allowed the appeal, quashed the conviction and set aside the sentence.
12. The Crown thereupon applied for a retrial. The instant case. was itself a retrial and it is rarely that an accused should be called upon to be tried a third time. We saw no special circumstance justifying the taking of such a course and accordingly dismissed the Crown's application.
Representation:
Applicant in Person.
Mr. F. Wong for Crown/Respondent.
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