The Queen v. Wong Chun-ping and Others
Read the full judgment text of CACC 493/1983 on BabelCite. This Court of Appeal judgment was delivered on 16 April 1984 before Roberts, C.J., McMullin, V.P. & Li, J.A..
Criminal law – Dangerous Drugs Ordinance – section 45 – manufacturing dangerous drug – presumption of manufacture – presumption of act preparatory – equipment referable – mens rea – knowledge – misdirection – proviso – sentencing – Court of Appeal – four defendants charged with manufacturing dangerous drug and possession for trafficking at Telford Gardens flat – large quantity of heroin and manufacturing equipment found – D.1 and D.4 pleaded guilty and sentenced to 13 years concurrent – D.2 and D.3 convicted of manufacturing after trial and sentenced to 9 years – whether section 45 requires proof of manufacturing in progress for presumption of manufacture to arise – whether presence of equipment referable alone activates presumption of manufacture – whether knowledge must be independently proved – whether trial judge misdirected jury – whether proviso applied – whether sentences excessive – Court of Appeal reviewed authorities on section 45 and restated law – applications for leave to appeal dismissed.
Legal issues: Interpretation of section 45 DDO – which presumptions arise from primary facts · Whether 'was being manufactured' requires manufacturing in progress at time of discovery · Whether the trial judge misdirected the jury on section 45 · Whether the proviso should be applied despite misdirections · Whether sentences imposed on D.1 and D.4 were excessive
Outcome: Applications for leave to appeal against conviction by D.2 and D.3 dismissed; applications for leave to appeal against sentence by D.1 and D.4 dismissed. Proviso applied to uphold convictions despite misdirections.
Cited by 35 cases
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CACC000493/1983 [Authorities on interpretation and application of section 45 of Dangerous Drugs Ordinance reviewed and law restated. Minimum sentence for manufacture of dangerous drugs.]
BETWEEN:
Coram: Roberts, C.J., McMullin, V.P. & Li, J.A. Date: February 15th, 16th, 17th & April 16th, 1984. ------------------------- J U D G M E N T ------------------------- Roberts, C.J.: Preliminary
1. The dangerous drugs found on the premises amounted to 9.617 kilogrammes of mixture containing 1.958 kilogrammes of salts of esters of morphine and a solution of 11.45 milligrammes, containing 1.619 kilogrammes of salts of esters of morphine. 2. The first and fourth defendants (D.1 and D.4) pleaded guilty on arraignment and were each sentenced to 13 years' imprisonment on each count, the sentences to run concurrently. D.1 and D.4 sought leave to appeal against their sentences. 3. The second and third defendants (D.2 and D.3), were convicted on the manufacturing charge and acquitted on the charge of unlawful possession for the purpose of trafficking. Each was sentenced to nine years' imprisonment and seeks leave to appeal against conviction. Facts 4. About 8 a.m. on 23rd July, 1982, police officers began to keep a watch on Room 14 on the ninth floor of Block K, Telford Gardens, Kowloon Bay. They were joined at about 11.50 a.m. by further police officers. Nobody was seen to enter or leave the flat in question from the beginning of the surveillance until 12.30 p.m., when D.3 emerged from the premises and was intercepted, though the evidence suggests that the police surveillance only became effective from 11.50 a.m. 5. D.3 was cautioned and a number of questions were put to him as to who was in the flat and what had been happening there. He admitted that he had left the flat in order to collect some caffeine, that he would get in touch with those inside the flat by paging machine when he had done so and that he would get $500 for doing so. 6. The police party continued to watch the premises until about 1.40 p.m. when a decision was taken to enter them. 7. The police forced their way into the flat, where they found D.2 in the sitting-room, doing nothing in particular. D.1 was found in the lavatory, emptying a jerry-can into the toilet. The jerry-can held a solution containing over a kilogramme of salts of esters of morphine. The Government Chemist gave evidence that, if the process of manufacture of that solution was to be completed, more caffeine would have been necessary than was found in the flat. 8. D.1 was the tenant of the flat, two keys to which were in his possession. Also found in the flat were a tenancy agreement and rent receipts in his name. As the police entered, D.4 was seen to climb out of the laundry window, having first thrown out eight packets of power which were later proved to contain dangerous drugs. D.4 fell eight flights and was seriously injured, though he subsequently recovered. 9. Inside the premises were found a huge quantity of dangerous drugs in 16 plastic bags, three jerry-cans and a plastic basin. Also discovered there was equipment which was referable to the manufacture of a dangerous drug, including scales, measuring jars, basins, plastic and metal scrapers, sealing machines, fan heaters and a gas stove. 10. The equipment was chemically tested and found to bear traces of dangerous drugs. Splashes of dangerous drugs were found on one of the bedroom walls. 11. Each of the defendants had his clothes, hands, feet, hair, toes and finger-nails tested and traces of dangerous drugs were found upon all of them. 12. In a cautioned statement, D.1 asserted that he was merely storing the drugs for D.4 and that D.2 and D.3 were merely visiting him. This foreshadowed the defence, which was put forward by D.2 and D.3, both of whom gave evidence. 13. They testified that they had visited the premises that morning because D.2 was looking for a flat and had brought D.3, a friend of his, with him, originally having arranged to borrow D.3's car, though this turned out not to be available on the morning in question. 14. D.2 and D.3 attempted to explain the presence of dangerous drugs in their clothing by saying that it might have been the result of indirect contamination and that they had taken their shoes off in the flat, which would explain why traces of drugs were to be found on their feet, something which the Government Chemist thought could not have happened by indirect contamination unless their shoes had been removed. 15. Both accused said that they had been to the toilet, it being suggested that this was a way in which the traces of heroin which were found in their underpants might have accidentally attached themselves. 16. D.1, who gave evidence for the defence after pleading guilty, admitted that manufacturing of drugs did take place on the premises, between about 11p.m. on the 22nd and 6.00 a.m. to 7.00 a.m. on the 23rd, well before the time when D.2 and D.3 said they had arrived there at about 9.00 a.m. on the 23rd. 17. As noted above, the police surveillance was not sufficiently close for the Crown to be able to disprove the story of D.2 and D.3 as to the time they arrived at the flat. 18. When the police broke into the flat, in the early afternoon, various pieces of equipment, which undoubtedly had been used in the manufacture of the dangerous drugs found in the flat, were packed away. The evidence of the Scientific Officer supported to some degree the evidence of D.1 that manufacturing had been completed some hours before the police entry, since he did not think that there had been any user of the stove and heater, which were essential to the manufacturing process, for some hours before he entered the flat at about 3.00 p.m. on the same day. Subsidiary grounds of appeal 19. Before coming to the main grounds of appeal, we will refer briefly to other submissions which seem to us to be of little substance. 20. First, it was said that the trial judge did not adequately explain the defence to the jury. 21. This ground has no substance. The defence was within a small compass. Both D.2 and D.3 asserted that they were on the premises by chance, and that the manufacturing of drugs had been carried on there without their knowledge or assistance. The judge summarised this to the jury and told them that, if they believed it or thought it was likely, they must acquit. 22. Second, it was complained that the judge did not tell the jury that it was open to them to find that the defendants only entered the flat after 9.00 a.m. when the process of manufacturing had been completed and that therefore the defendants could not have been a party to the manufacturing. 23. We do not agree. The point was put to the jury in the following passage of the summing-up -
24. Third, objection was taken to the following comment by the judge -
25. It was argued that this comment implied that the defendants had concerted together to produce fabricated evidence and that it must have had a highly prejudicial effect on the jury. 26. We accept that the jury may well have interpreted this comment as suggesting that, when assessing the credibility of the defendants, the jury should take into account the opportunity which they had to discuss what they were to say and to ensure that their stories agreed. 27. While a comment of this nature is better avoided, we cannot say that it is of so prejudicial a nature as to give us cause to think that it might have had a significant effect on the outcome of the trial. 28. Fourth. It was argued that the judge was wrong not to exclude the verbal admissions which were made by D.3, when he was arrested by police officers as he left the flat and made his way downstairs; because he was under arrest and had not been cautioned, he should not have been questioned and his admissions should not have been put in evidence. 29. D.3 did not allege that any verbal admissions had been extracted from by threats or pressure, merely that he had never made any. There was thus no evidence to suggest that , if made, they were obtained improperly; the only issue was whether they were made as alleged by the police officers concerned. 30. The other objection was that, although the conversation was post-recorded by a police officer, D.2 was not asked to sign it as correct. 31. It is good practice, where a post-recording is made, for a person alleged to have made statements recorded in it to be given an opportunity to sign it as correct and to amend it as he thinks fit. Although the failure to take this precaution may leave the record open to challenge on the grounds of its authenticity or accuracy, we cannot say that such an omission is fatal to the admission of a statement, if the judge is satisfied, from the other circumstances, that it was not obtained by improper methods and was accurate. Misdirections as to the effect of section 45 of D.D.O. 32. The submissions which were made with regard to this section form the heart of the argument put forward most capably on behalf of D.2 and D.3. 33. In considering them, it has been necessary for us to examine in some detail various decisions of the Full Court and of this Court on the interpretation of section 45 of the D.D.O. which is as follows -
34. An examination of the cases illustrates the difficulties which have arisen in the interpretation of the section. We will first endeavour to summarise the decisions, so far as they were relevant to this appeal. (1) So Ching-kan v. R. (Crim. App. 836/71 unreported)(Full Court)(1) 35. The defendant was found in premises in which were discovered equipment referable to the manufacture of a dangerous drug ("equipment referable")
(2) Lee Kee v. The Queen (1976 H.K.L.R. 58) (Full Court)(2) The Full Court approved So Ching-kan(1) but added that -
(a) conflicts with So(1), to the extent that Lee Kee(2) requires both D.D. and equipment referable to be found on the premises before a presumption of manufacturing arises. So(1), however, decided that the presence of equipment referable was sufficient. 36. The suggestion in Lee Kee(2) that the prese3nce both of D.D. and of equipment referable are required to activate the presumption of manufacture, does not appear to have been followed in other cases. It seems to us to be a wrong reading of the section which can, in any event, be considered to been overruled in this respect by Yu Tit-hoi(3). (3) Yeung Yee-man v. The Queen (1977 H.K.L.R. 172)(Court of Appeal).(4) 37. This case introduced a new requirement that, in addition to proving the facts necessary to activate the presumption, the Crown must establish that the defendant knew that what were being manufactured were in fact D.D., i.e. the mens rea of the defendant was an essential ingredient in the offence of manufacturing and must be proved independently of the presumption. (4) Cheng Chung-kan v. The Queen (1977 H.K.L.R. 451)(Court of Appeal.(5) 38. The court confirmed the requirement as to independent proof of knowledge imposed by Yeung Yee-man.(4) (5) Tong Yuk-tim v. The Queen (1980 H.K.L.R. 140)(Court of Appeal).(6) 39. The court followed So(1), insofar as it confirmed that the presumption of manufacturing will arise if the defendant and equipment referable were present in the premises at the same time. (6) Yu Tit-hoi v. The Queen (1983 H.K.L.R. 7)(Court of Appeal).(3) 40. D.D. and equipment referable were found on the premises. The manufacturing process had been completed when the police arrested the defendant in the premises. The court found -
(c) conflicts with So(1) and must, since the latter decision was of the Full Court, be said to have overruled it to that extent. (7) Chan Siu Man v. The Queen (Crim. App. 154/83)(Court)of Appeal. (7) 41. The court felt bound to follow Yeung Yee-man, (4) which decided that the presumption under section 45 does not embody "knowledge" and that "knowledge remained to be separately proved. 42. One member of the court, however, expressed himself as unable to follow Yeung Yee-man(4) and suggested that the law should be changed so as to provide for a statutory presumption of "knowledge" under section 45. 43. This was done by virtue of the Dangerous Drugs(Amendment) Ordinance, 1984, which came into force on 7th January 1984, after the summing-up in the case under appeal on 29th March, 1983. (8) R. v. Law Chih-leung (Crim. App. 612/83) (Court of Appeal).(8) 44. The court approved a direction by a Commissioner to the effect that the presumption of manufacture arose if the Crown proved -
45. The court was invited to rule that Yu Tit-hoi(3) was wrongly decided insofar as Yu(3) indicated that the finding of equipment referable on the premises could give rise to a presumption of an act preparatory to manufacture but not to a presumption of manufacture, but declined to do so. 46. However, Law(8) decided that So(1) should be followed, though So(1) and Yu(3) were in conflict as to whether the presence of equipment referable and of the defendant are sufficient by themselves to give rise to a presumption of manufacturing. Summary of Cases 47. The above cases establish that the Crown must prove as primary facts, beyond a reasonable doubt, before any presumption arises under section 45(1)(a)
48. But there are two aspects of the application of section 45 which are not without doubt, the interpretation of the words " was being", in section 45 (1) (a) and the question of which of the two presumptions arises when primary facts are established. Manufacturing in progress 49. Section 45 (1) provides that a presumption under it arises if it is proved that a defendant was found in, or escaping from, any premises in which a D.D. was being manufactured. 50. So(1) suggested that it was not necessary to show that manufacturing was in progress when the defendant was discovered on the premises. This does not seem to have been necessary to the Full Court's decision, since it had already decided that the presumption of manufacturing arose if the accused and equipment referable were found on the premises at the same time. 51. Lee Kee(2) approved that part of So(1) which dealt with the contemporaneity of accused and D.D. 52. Yu(3) decided that a presumption of manufacturing arises if manufacture of D.D. had manifestly been going on about the time of discovery" of the premises. 53. In Law(8), the court criticized the headnote to the law report of Yu,(3) which suggested that a presumption of manufacturing arises if manufacturing "was in process or had been completed or was about to begin". Law(8) quoted, with apparent approval, the passage in Yu(3) which suggests that the presumption is intended to catch those who are on the premises with knowledge of what "had been going on about the time of the discovery" of the defendant. 54. The words was being manufactured in section 45(1)(a) seem to us to require a clear connection to be established between the accused found on the premises and a process of manufacture being carried out on them. At the moment when he is so found, the process of manufacture must be in progress. This does not mean that manufacturing equipment must be in actual use at the time, provided that the evidence establishes that manufacturing has been in progress recently and is likely to be resumed soon. 55. If, for example, the evidence establishes that D.D. had been produced a few hours before and that equipment referable and materials for manufacture were on the premises, it would be open to the jury to find that drugs "were being manufactured" on the premises, even though the process was interrupted. 56. Such a situation will not often arise and it will usually be necessary for the Crown to show that the process was in progress at the relevant time. In this case, however, there was evidence which could be said to show that there was merely a break in the manufacturing process. D.3, when arrested as he left the premises, admitted that he was to collect some caffeine, a necessary ingredient in the process of the refining of heroin; and there was shown to be present on the premises a quantity of a solution to which caffeine would have to be added to produce refined heroin. Which presumptions arise 57. The wording of section 45 of the D.D.O. has given rise to a divergence of views as to which presumptions arise as a result of the establishment of the primary facts. 58. In Yu(3) section 45 is said to mean (assuming proof of the presence of the defendant) that -
59. By the Law(8) interpretation, if proof is given either that drugs were being manufactured or that equipment referable was found on the premises, this will give rise to a presumption of manufacture or to a presumption of an act preparatory. 60. Thus the Yu(3) ruling is that only presumption A can follow proof of fact (a) and only presumption B can follow proof of fact (b). The Law(8) interpretation says that, by reason of the word "or", which appears in each part of the section, proof of either fact (a) or fact (b) would give rise to either presumption A or presumption B. 61. If the Law(8) interpretation is adopted, the same set of facts can give rise to two presumptions, each referable to a separate offence under section 6 of the Ordinance. 62. The doctrine of precedent requires that the Court of Appeal should (save in the limited circumstances when it may do otherwise) follow its own earlier decisions. 63. Thus, insofar as Law(8) can be said to be in conflict with Yu(3), an earlier decision of this court, Law(8) would have been wrongly decided and we should follow Yu(3), as the court in Law(8) should have done, and no doubt would have done had it realized that, by approving So(1), it had adopted an interpretation disapproved in Yu(3). 64. In any event, had there been no previous decisions on the question, we would have preferred the interpretation given in Yu(3). We do so because the alternative reasoning (i.e. that facts (a) or (b) can give rise to either presumption A or presumption B) would mean that if it were shown that the accused and equipment referable were present in premises on which no manufacturing was being, or even had been, carried on, a presumption would nevertheless arise that he had been manufacturing on the premises. 65. By adopting the Yu(3) approach, a presumption of manufacturing will arise against an accused only if he is found on premises where manufacturing was being carried on. If only equipment referable is found there, the presumption of an act preparatory only will arise. The Summing-up 66. On the basis of the law as it stood at the date of the summing-up, the judge misdirected the jury in three major respects -
67. This was wrong, since the judge should have followed Yu(3), and directed the jury that the presumption of manufacturing could not arise on proof only of the presence of the defendant and of equipment referable on the premises. Even if Law(8) had been correct, the judge could not have been guided by it, since he summed-up on 29th March, 1983, long before Law(8) was decided on 28th September, 1983.
Effect of misdirections (a) With regard to the judge's failure to direct the jury as to the requirement that the Crown must prove knowledge (Yeung Yee-man(4)) we regard it as wholly improbable, taking account of the facts which were established, that any reasonable jury, directed that, if they found that the defendants were manufacturing the drug, they must also be satisfied that they knew what they were doing, would have come to any other conclusion but that the defendants knew they were taking part in the manufacture of a dangerous drug. 68. Perhaps, if any of the defence witnesses had testified that the defendants thought they were making soap powder or washing-up liquid or some other innocent substance, there might have been some basis for an alternative finding. There was no such suggestion and on the evidence a finding of manufacture would inevitably have been supported by the necessary finding of knowledge. (b) The trial judge was wrong to toll the jury that the presumption of manufacturing arose from the contemporaneous presence of equipment referable and of the defendant, without any proof of manufacturing being carried on. 69. He should have directed them that no presumption of manufacturing arises against an accused unless it is shown that D.D. were being manufactured, on the basis which we have adopted that section 45 contains two alternative presumptions, one of manufacturing and one of an act preparatory, activated respectively by evidence of manufacturing and of equipment referable. 70. Had he directed them correctly, we are satisfied that the jury would inevitably have concluded that manufacturing was in progress on the premises (in the sense specified below) and that the presumption therefore arose. (c) Since the judge told the jury that the presence of equipment referable was sufficient to activate the presumption of manufacturing, he did not find it necessary to direct them as to whether or not manufacturing "was being" carried on when the accused were arrested. 71. Had he done so, we think that he could properly have directed the jury that it was open to them, to find that the Crown had established that a dangerous drug 'was being manufactured" at the time D.3 was arrested outside the flat and D.2 inside it, giving to the phrase " was being manufactured" the broader interpretation set out above, namely, that it comprehends a situation in which the process of manufacture of D.D. had been suspended but would shortly be resumed. 72. Had he so directed the jury, we have no doubt that they would have found that the facts which give rise to a presumption of manufacturing had been established beyond reasonable doubt. 73. Although there were misdirections in relation to the meaning and effect of section 45, we are left in no doubt that, if they had been correctly directed, the jury would have convicted. 74. The evidence against D.2 and D.3 was strong and we have no hesitation in applying the proviso, being satisfied that no miscarriage of justice occurred as a result of the misdirections. Their applications for leave to appeal against conviction are dismissed. Future Guidance 75. We would like to offer, in the hope that it will be of assistance in the future, our view of the effect of section 45.
76. If (1) plus (2) (a) are proved, there will arise a presumption that the defendant was manufacturing. 77. If (1) plus 2 (b) are proved, there will arise a presumption that the defendant was doing an act preparatory. 78. If, as might occur, the Crown includes counts under section 6 (a) and under section 6 (b) in the alternative in the same indictment, both presumptions might arise on the same facts but would be referable to the appropriate chare - i.e. the presumption of manufacturing would arise in relation to the charge under section 6 (a) and the presumption of doing an act preparatory in relation to the charge under section 6 (b). Sentence 79. D.1 and D.4 were each sentenced to thirteen years' imprisonment, after pleading guilty. 80. The two main grounds advanced in their applications for leave to appeal against sentence were that -
81. The judge commented, in passing sentence, that he would have imposed fifteen years' imprisonment had there not been a plea of guilty. 82. The other cases cited to us suggested that such a sentence is somewhat higher than is usual for manufacturing, where the range seems to be between 7 and 14 years. 83. In Chan Chi-ming(9) we set out a suggested range of sentences for possession of dangerous drugs for the purpose of unlawful trafficking, the sentence depending primarily upon the quantity of D.D. found in the possession of the defendant at the time. 84. The quantity of drugs found on the premises where manufacturing is taking place, or has taken place, is of some value in indicating the scale of the manufacturing operation. And we suggest that a person convicted of manufacturing should normally receive a longer sentence than he would have done if convicted of unlawful possession, for the purpose of trafficking, of the amount of D.D. found on the premises. 85. However, the serious aspect of manufacturing is that the processes of distribution and trafficking in D.D. depend upon a refining process being undertaken between the grower and the consumer. 86. It is therefore the act of manufacture that is the worst feature of this most serious offence, not merely the actual amount of drug which is found on the premises where the process takes place. 87. For instance, it may well happen that a quantity of 100 grammes of a mixture containing salts of esters of morphine is present in premises where manufacturing is found to have taken place. The Chan Chi-ming(9) tariff would have suggested as sentence of only 3 to 5 years which would be wholly inadequate for the offence of manufacturing. 88. We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years' imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of D.D. 89. This was a very serious case of manufacturing, taking into account the large quantities of refined heroin which were discovered on the premises, amounting to not far short of 10 kilogrammes of a mixture containing over 3 1/2 kilogrammes of salts of esters of morphine. 90. Had the defendants been convicted of possession of such a quantity of dangerous drugs for unlawful trafficking, they could have expected a sentence of 12 to 14 years. Thus for manufacturing, we consider a sentence of 15-16 years, to be entirely appropriate, with a suitable deduction, as was made by the judge for a plea of guilty. 91. This court has more than once said, in relation to the second argument advanced, that if a sentence imposed on a defendant is a proper one in itself, it should not be reduced merely because that defendant appears to have been treated more severely than a co-defendant. 92. The judge imposed shorter sentences on D.2 and D.3, notwithstanding that they had pleaded not guilty, because he came to the conclusion, on the facts as he viewed them, that they had played a minor part in the manufacturing process , as compared with the roles of D.1 and D.4. 93. We cannot say that there was no evidence to justify him in making this distinction. The applications for leave to appeal against sentence of D.1 and D.4 are therefore dismissed. (1) Crim.App. 836/71 unreported. (2) [1976] H.K.L.R. 58. (3) [1983] H.K.L.R. 7 (4) [1977] H.K.L.R. 172 (5) [1977] H.K.L.R. 451 (6) [1980] H.K.L.R. 140 (7) Crim. App. 154/83 (8) Crim. App. 612/83. (9) [1979] H.K.L.R.491 Representation: Miss C. Remedios (D.L.A.) for all Appellants. G. Alderdice, Sr. Asst. Crown Prosecutor for Crown. |
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