Lee Chun-kwai v. The Queen

CACC000476/1978

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Coram: Huggins and Pickering, JJ.A. and McMullin, J.

Date of Judgment: 7 May 1979

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JUDGMENT

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Huggins, J.A.:

1. We have come to the conclusion that this appeal must be allowed. The Appellant and three others were indicted for manufacturing a dangerous drug and possession of a dangerous drug for the purpose of unlawful trafficking. The other three pleaded Guilty and their applications for leave to appeal against sentence were dismissed on 6th December last. This Appellant appeals against conviction.

2. The police sought to raid a flat which has been called Flat A. They could get no reply to the bell and, on breaking the door open, found no one inside. An observant officer, however, noticed some brown fluid coming from a drain of the next flat, which has been called Flat B. The occupants of Flat B would not open the door and two officers climbed from Flat A into Flat B through a window of each flat. Although there was reference during the trial to a "connection" between the two flats, this did not, apparently, mean that there was a direct means of physical access from one to the other. Inside Flat B the police found three men (the co-defendants already mentioned) in the act of manufacturing dangerous drugs. The Appellant was arrested on the roof after he had climbed out of the window of Flat B, which was on the 25th floor, and scaled the wall to the roof.

3. The Appellant was the husband of the tenant of Flat A. That flat was substantially unfurnished but it did contain some curtains, a built-in wardrobe, a banner bearing the name of the Appellant and a safe. In one room the walls and curtains had been covered with brown paper to a height of 6 feet or more and in the flat was a roll of similar brown paper. The Appellant was proved to have bought a roll of such paper on the previous day. On the floor was some spilled sodium carbonate, a chemical used in the manufacture of dangerous drugs. There was also a bamboo stirrer on which were traces of salts of esters of morphine. In the wardrobe was an invoice for a gas mask. A gas mask of the type there referred to was being worn by one of the men engaged in the manufacture of dangerous drugs in Flat B.

4. The case for the Crown on the first count was, of course, that the Appellant was presumed to be manufacturing dangerous drugs because, as was not disputed, he was found escaping from a place where dangerous drugs were being manufactured. On the second count the Crown relied upon the presumptions as to knowledge of the nature of the drug and as to the purpose of the possession, but submitted that it had proved possession of the drugs. For my part I doubt whether there was sufficient evidence from which possession of the drugs could properly be inferred, but we were not addressed as to that and, in view of the decision at which we have arrived concerning the matters in fact raised, it is not necessary for us to deal with this aspect of the case. The main contention on behalf of the Appellant is that the learned judge misdirected the jury as to the onus and burden of proof. We think he made it sufficiently clear to the jury that the general onus of proof and the onus of proving any primary facts which would give rise to the presumption were on the Crown. He also made it sufficiently plain that the standard of proof was proof beyond all reasonable doubt. However, he approached the presumptions in the manner which this court condemned in Lam Wai-ming v Reg. Cr. App. 1977 No. 981, although the judgments in that case were not delivered until after the trial of this Appellant. In Lam Wai-ming v Reg. the majority of the court took the view that the misdirection was not fatal, but it was the only matter for which there was just cause for complaint. In the present case there are other criticisms of the summing-up. First, there were two occasions when the learned judge could have been understood by the jury to say that the degree of proof required of the Appellant was more than proof beyond a balance of probabilities. It is true that on other occasions he did speak of probability, but where the basic approach has been wrong the court will be slow to uphold a conviction if there is even the slightest chance of misunderstanding. The second criticism makes it even more difficult for us to uphold these convictions and that is that the defence was not adequately put. We recognize that it was really a simple case and that, the trial having been short, the evidence would be fresh in the minds of the jury. Nevertheless, however weak the defence story might have seemed to the judge, the jury should have been reminded of the Appellant's explanations of the more damaging parts of the prosecution case. In particular there was (i) the evidence that no key to Flat A was found on him, so that his story of having gone to Flat B to persuade the other defendants to remove their property from Flat A was suspect; (ii) the evidence that sodium carbonate had been spilled on the floor of Flat A; (iii) the evidence that brown paper had been fastened to the walls of Flat A and that a contaminated bamboo stirrer was found there. For each of these matters an explanation was advanced, but these explanations were not mentioned in the summing-up.

5. In the result we find ourselves unable to uphold the convictions. The convictions must be set aside but we think there must be a new trial.

7th May 1979.