Lee Ching Hung v. The Queen

CACC001069/1980

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Coram: Li, J.A., Baber and Addison, JJ. in Court

Date of Judgment: 5th March 1981

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JUDGMENT

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Li, J.A.:-

1. The appellant aged 41, was convicted of possession of an Acetylating Substance contrary to s.6 and s.15(1) of the Acetylating Substance (Control) Ordinance. The particulars of offence alleged that on 8th August, 1980 at 189 Hennessy Road, 2nd Floor, the appellant had in his possession some 109. 1 litres of acetic anhydride without lawful authority. The appellant pleaded guilty to the charge and was sentenced to 4 years' imprisonment.

2. The evidence in support of that charge was that on 8th August last year a police party went to the premises occupied by the appellant and conducted a search under a general authorisation. In a built-in wardrobe in the upper part of the kitchen they discovered 6 jerry cans which were found to contain 109.1 litres of acetic anhydride. The appellant admitted to the police that he was in possession of the substance and that he knew they were acetic anhydride. However, he said that he stored them at the request of his friend who was a seaman. His friend told him that the substance was to be used in the industrial dyeing of clothes.

3. The Probation Officer's report on the appellant revealed that he was an illegal immigrant in Hong Kong. He was deserted by his parents when he was a young boy; he was brought up by his uncle who took him to Hong Kong. Throughout his working life he has had various jobs. In China he worked as a fisherman. After his arrival in Hong Kong he worked successively as a fish pond worker in the New Territories; a casual worker in a cafe earning about $600 per month; a delivery worker earning about$800 per month and finally, about 2 years ago, he started to work as a middle-man selling wares to seamen. That business expanded and it earned him an income of about $3,000 per month. The premises from which he operated formerly belonged to another and he took it over not only in order to store his goods but also to use it as a hostel for visiting seamen. Sometime prior to his arrest a seaman friend by the name of LAM Kwok-wah lodged the substance with him with the request that he should keep it for him until he returned from sea. He kept it in the premises for him. According to the appellant, Lam told him that the substance had an industrial use for dyeing cloth. When the appellant was arrested he readily admitted that he knew that it was acetic anhydride but said that he only knew it was used for dyeing cloth. He did not know of any other use it might have.

4. On record there is a memo dated the 15/11/80 written by Crown Counsel and addressed to the trial judge to the effect that according to the Government Chemist the use of acetic anhydride is for the manufacture of heroin. It has no other industrial use. The amount kept on the appellant's premises was valued at HK$130,000 and the substance in that quantity could be used to manufacture about 500 kilogrammes of heroin. This memo was sent to the trial judge at his request. The basic plea in mitigation of the appellant was that he did not know acetic anhydride could be used in the manufacture of heroin.

5. The maximum sentence for possession of acetic anhydride is 15 years' imprisonment and a fine of $1,000,000. There is no statutory minimum sentence. ultimately the sentence to be imposed will depend on the knowledge of the appellant - whether he knew to what use such substance could be put. The learned trial judge in his reasons for sentence said this:-

"Although the defendant indicated to the police that he was not aware of the use of the substance he admitted that he knew that it was acetic anhydride. The defendant is a mature man of 41. In this day and age can it be seriously suggested that a person in the defendant's position would not know that acetic anhydride is used in the manufacture of dangerous drugs."

The last sentence in the cited passage is a rhetorical question. He sentenced the appellant to 4 years' imprisonment. It appears to us that the term of 4 years was imposed on the assumption that the appellant must have known that the substance was used for the manufacturing of heroin and had no other industrial use. This assumption was founded on a statement from Crown Counsel and was not supported by definite evidence. The provisions of the Ordinance contain a presumption against the appellant that once he is in possession he must have known what was in his possession, namely, acetic anhydride. However, the appellant has not admitted knowledge as to the use of the substance in the manufacture of dangerous drugs. The range in sentence which can be imposed for this offence is huge, dependent on whether the appellant knew for what purpose the substance was to be used. If there is evidence that he knew he deserves a heavier sentence. We hesitate to indicate how long the sentence should be. If the appellant did not know that acetic anhydride could be used for the manufacture of heroin then obviously his offence merits a much lighter sentence. If, there is a doubt in the matter then he should be given the benefit of that doubt for sentencing purposes.

6. At the time of sentencing the only evidence before the trial judge was that first the appellant traded with seamen and that the offending substance had been left with him for safe custody by a friend who had gone away to sea but was expected to return sometime in the future. There was contradictory evidence as to whether the substance had been with the appellant for one year or merely a couple of months. On this evidence he was sentenced to 4 years. It appears to us that the learned trial judge founded his assumption as to the appellant's knowledge of the illegal use mainly on the basis that the appellant was a man of 41 years and that therefore he must have known. The Crown has not been required to adduce evidence and to prove knowledge. The appellant had no chance to adduce evidence in rebuttal. In view of the appellant's persistent denial of knowledge as to the use for which the substance might be put we feel that the Crown should be allowed to adduce evidence or rely on circumstantial evidence to show knowledge of illegal purpose. Likewise the appellant should have a chance to adduce evidence in support of his lack of knowledge. We feel that it is unsafe to make an assumption without such evidence. Accordingly, we will allow this appeal in part to the extent that the present sentence is set aside and that the case is remitted back to the trial judge for evidence to be taken and a finding be made on such evidence as to whether the appellant knew the purpose for which the said acetic anhydride may be used in the manufacture of heroin and thereafter to impose such sentence as the judge deems fit. This is without any prejudice to any further right of appeal to this court against sentence if the appellant see fit to do so.

Representation:

Appellant in person

C. A. White for Crown