Tong Yuk-tim v. The Queen
Read the full judgment text of CACC 552/1979 on BabelCite. This Court of Appeal judgment was delivered on 13 March 1980 before Roberts, C.J., Pickering, J.A. & Leonard J..
Dangerous drugs – manufacturing – possession – presumption – found in premises – co-existence – judge's intervention – right of reply – Criminal Procedure Act 1865 – unsafe or unsatisfactory – Appellant owned flat with manufacturing equipment and heroin – caretaker saw appellant near lift – appellant not seen inside flat – fingerprint on equipment – appellant told police about heroin – Whether presumption under s.45 requires proof of co-existence – Whether judge's interventions and prosecution's reply rendered conviction unsafe – Conviction on manufacturing quashed – conviction on possession upheld
Legal issues: Presumption under section 45 Dangerous Drugs Ordinance - meaning of 'found' in premises · Whether conviction on second count was unsafe or unsatisfactory due to judge's interventions and prosecution's right of reply
Outcome: Appeal allowed in part: conviction on first count (manufacturing) set aside and sentence quashed; appeal against conviction on second count (possession) dismissed.
Cited by 7 cases
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CACC000552/1979
----------------- Coram: Roberts, C.J. Pickering, J.A. & Leonard J. Date of Judgment: 13 March 1980 ----------------- JUDGMENT ----------------- Leonard, J.: 1. The appellant faced two counts of offences under the Dangerous Drugs Ordinance and both counts were in respect of activity at the same premises, that is, 37-39, Fa Yuen Street, 11th Floor, Block B, Kam Mong Building, Kowloon. 2. On the first count he was charged with manufacturing dangerous drugs at that address. The only evidence of manufacturing was the presence in the flat of equipment referable to the manufacture of a dangerous drug. His finger print was found on part of this equipment but there was nothing to show that the finger print was placed on it while it was in the flat. Conviction on this count depended on the application of the presumption in section 45 of the Dangerous Drugs Ordinance; to activate this, the prosecution had to prove that he had been "found" in the flat at the same time as the equipment was there. 3. On the second count he was charged with being in possession of a large quantity of dangerous drugs, that is to say, 11,240.7 grammes of a mixture containing 4,751.4 grammes of salts of esters of morphine and a further relatively small quantity of mixture containing 7.6 grammes of esters of morphine. He had the keys to the flat, so that the presumptions under section 47 arose on this count. 4. He faced jointly with another accused a third count of possession elsewhere, with which we need not concern ourselves since both were acquitted of this offence. 5. The premises were under surveillance. On the morning of the 21st of November 1978 the appellant visited them on the telephoned request of the caretaker, who asked him to open a door to the rooftop. The block of flats consisted of 11 floors and the rooftop. The appellant owned a flat on the 11th floor but did not reside there. He alone had access to the rooftop, to which there were two doors, one inside and one outside his flat. He was met by the police officers as he and the caretaker emerged from the lift on the ground floor. When asked where he had been, he said he had been on the 11th floor. At no time did he admit that he had been in the flat in which the equipment referable to manufacture was found. 6. The only evidence as to his having been "found" in those premises came from the caretaker, who saw him twice that morning. On the first occasion he saw him going up in the lift. Shortly after that, the caretaker found that the door to the rooftop had been opened as requested by the caretaker in their telephone conversation. When the caretaker came down from the rooftop, he met the appellant outside the doors of the lift on the 11th floor. They went together to the ground floor where they were met by the police. They arrested the appellant, brought him to the flat on 11th floor and opened the door with his keys. 7. The first ground of appeal was that there was no sufficient evidence disclosed in the prosecution case for the presumption under section 45 of the Ordinance to arise. That presumption comes into operation when it is proved that a person was found in any premises in which equipment or material which is referable to the manufacture of a dangerous drug was found at the same time. The equipment or material referable to the manufacture of dangerous drugs consisted of a variety of implements, including a metal basin on which the finger print was found; there were various other implements such as a scales and scrapers which were found in a cardboard carton. On all were traces of heroin. 8. When the appellant was in the flat with the police, as they were searching it, he told them that there was no need for them to search any further but that the carton contained several pounds of heroin. It did contain the quantities which I have mentioned as forming the subject of the second charge. 9. We have been referred to a number of authorities on the question as to when a person can be said to have been found in premises in which equipment or material is found. The origin of the doctrine that the person concerned need not be arrested on those premises is to be found in Thomas v. Powell(1). This case was the subject of comment by this court in SO Ching-kan v. The Queen(2), from which it is quite clear that the presumption will not arise unless the presence of the accused person and of the equipment in the premises have been shown to co-exist. While it was justifiable for the judge to infer that both the equipment and the appellant were present at the same time in the premises, that is not the only inference which can reasonably be drawn from the prosecution evidence. For this reason we are satisfied that a submission of no case to answer which was made at the conclusion of the prosecution case should have been succeeded and that the appellant should have been found at that stage of proceedings not guilty of the charge of manufacture. This lacuna cannot be cured by evidence given by the appellant when called upon for his defence. Therefore the appellant is entitled to be acquitted on the first count. 10. As to the second count, the sole ground of appeal is that the conviction is unsafe or unsatisfactory. Firstly, it is said that the trial judge, by the nature of his cross-examination of the appellant, indicated a subconscious bias in favour of the prosecution and to a certain extent took over the conduct of the prosecution case. In the case of LAU Ying-wah and TSE Man-fai v. The Queen(3) we had occasion to refer to a similar objection. In that case we referred to R. v. Hamilton(4). There it is pointed out that:
As in the case of LAU Ying-wah, there could be no question of the second or third ground of objection here. The sole ground that could have existed was that the questions asked by the trial judge invited the jury to disbelieve the defence evidence in such terms as cannot be cured by telling the jury that they were the sole judges of the facts. We consider that the questions asked by the trial judge show an undesirable degree of intervention but, as is clear from Hamilton, it is entirely a question of degree as to whether or not they are fatal. We do not consider that the extent or manner of questioning was such as to cause us to upset the conviction on the second count for this reason, whether taken by itself or cumulatively with the second complaint. 11. The second complaint was that the trial judge was wrong to allow counsel for the prosecution to make a final speech, when the provisions of section 2 of the Criminal Procedure Act 1865 do not extend to the Colony; secondly, the evidence of the appellant's co-accused, WONG Wai-man, did not favour or tend to favour in the least the appellant's case; and thirdly such an address was in contravention of the provisions contained in section 56 of the Criminal Procedure Ordinance which provides-
It does not say that the prosecution shall not have a right of reply if the person charged has not been called as a witness. Nor do we agree that section 2 of the Criminal Procedure Act 1865 does not extend to the Colony does not affect the matter. It has not been specifically applied but section 9(3) of the Criminal Procedure Ordinance states:
12. Since the Criminal Procedure Act 1865 is part of the practice and procedure in force in England, it therefore applies to Hong Kong. The Crown in England has the right of addressing the jury after the accused has given evidence, even if he does not call witnesses (Bryant and Oxley(5)). At page 692 of that report it is pointed out that when an unrepresented defendant gives evidence but calls no evidence, save as to character, the right of the Crown to address the jury should be exercised sparingly and with becoming brevity. Such a limitation does not apply to defendants who are represented. The practice in Hong Kong is that, even in a case which does not present particular difficulties, the Crown may reply immediately after a represented accused has given evidence. 13. We do not consider that the conviction on the second count is either unsafe or unsatisfactory and refuse leave to appeal against conviction on the second count. The conviction on the first count will be set aside and the sentence on that count alone quashed. Representation: Mr. A.J. Sanguinetti (David K.W. Tsang & Co.) for appellant. Mr. Polson, C.C. for Crown/respondent. (1) (1893) 57 J.P. 329. (2) Criminal Appeal No. 836 of 1971. (3) Criminal Appeal No. 484 of 1979. (4) (1969) Crim. L.R. 486. (5) (1978) 2 All E.R. 689. |
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