The Queen v. Cheung Sum Man

CACC000487/1985

BETWEEN

Coram: Li, V.-P., Yang, J.A. & Penlington J.

Date of hearing: 29th January 1986

Date of delivery of judgment: 29th January 1986

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JUDGMENT

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Yang, J.A.:

1. This is an application for leave to appeal against conviction for doing acts preparatory to or for the purpose of manufacturing a  dangerous drug at Ma Yau Tong, Rennie's Mill, Kwun Tong, Kowloon.

2. On the 12th February 1985 two police officers from the Narcotics Bureau went to Ma Yau Tong Village and, there they kept surveillance of a house known as the ground floor flat of 70 Ma Yau Tong Village. They kept watch for about four hours, during which time they observed the Applicant going between 70 Ma Yau Tong Village and a wooden structure built on the hillside on Crown Land some ten minutes' walk away. At about 4 p.m. the police entered the flat and arrested the Applicant. It is not disputed that equipment and material referable to the manufacture of heroin were found inside. Within the confines of the wooden structure and also surrounding it, other paraphernalia, referable to the manufacture of heroin were found.

3. The trial judge directed the jury that they might invoke the presumption provided in Section 45(b) of the Dangerous Drugs Ordinance. The section reads:

"45(1)     Where it is proved that a person was found in, or escaping from, any premises, or the part of any premises, in which

such person shall, until the contrary is proved, be presumed to have been manufacturing or doing an act preparatory to the manufacture of the dangerous drug."

4. The defence did not dispute that equipment and material referable to the manufacture of dangerous drug were found in the flat as well as at the wooden structure. It is also common ground that the Applicant was apprehended inside the flat and had earlier been seen at the wooden structure. Counsel for the Applicant agrees that the presumption may properly be applied in respect of flat No. 70 but argues that it may not be applied to the wooden structure.

5. There is only one ground of appeal and that is that the evidence does not bring Section 45 into effect: the Applicant was not "found in" or "escaping from" the wooden structure. He might have been "seen in or at" the structure but not "found in", certainly not "escaping from". It is argued that the finding of the defendant and of the equipment and material referable must "co-exist": vide Tong Yuk-tin v. The Queen ^(1). We agree; we do not think the presumption will arise if the defendant and the equipment and material were found at quite different times, though in the same place. The real issue is whether the Applicant, who had earlier been seen at the hut, could be said to have been "found in" the hut. Counsel for the Applicant argues that "found in" denotes a physical presence of the suspect in the premises when the police entered. Observation of his presence at the premises from a distance does not come within the term "found in", though he was definitely "seen in", according to counsel. If we understand counsel correctly, by "found in" he meant a person entering a place and finding the defendant there. By "seen in" he meant that an observer from a distance saw the defendant inside a place. In our view, the argument is artificial, and centres on semantics without coming to grips with the reality of the situation. The police were keeping watch on the Applicant's movements for a few hours, he was seen to go to the wooden structure on four occasions, no one else was seen to have resorted to the place, and then they apprehended him in flat No. 70. At the same time a party of police went to the wooden structure and found the incriminating articles. The Applicant admitted in evidence going to the hut on two occasions that day, he said to water bananas. On those facts, we are satisfied that the Applicant was found in No. 70 as well as the wooden structure.

6. It was then argued that the Applicant must be found to be in or escaping from "premises". The wooden structure on Crown Land could not in ordinary parlance be described as "premises". The wooden structure had a board erected there to act as a partition. There were a few sticks and boards to loosely mark the boundary of the structure, but there was no roof, except for an awning. which overhung part of the structure. Then there was one side of the wooden structure where hardly any boundary was noticeable, with all manner of rubbish overspilling from the inside onto the outside. In the circumstances, it would seem that the "wooden structure" may properly be described as premises.

7. In the course of arguments, a number of questions were asked by this Court which eventually turned out not to be relevant to the issue before us. Confining ourselves to the sole ground of appeal, we are satisfied that the Applicant was found in flat No.70 as well as at the wooden structure, and in both places equipment and material referable to the manufacture of heroin were found. The presumption under Section 45 was properly applied.

8. For these reasons, the application is dismissed. We understand the application for leave to appeal against sentence is not pursued. That application is therefore also dismissed.

(1)    (1980) H.K.L.R. 140

Representation:

O'Reilly Mayne, Q.C. and John Lee (R.J. Oliver) for Applicant

I. G. Cross and C. Coghlan, Crown Counsel for DPP/Respondent