The Queen v. Cheng Kim Hung and Another

IN THE COURT OF APPEAL

1986, No. 559
(Criminal)

BETWEEN

THE QUEEN

and

CHENG KIM HUNG (D1)
LAM CHUNG KEUNG (D2)

Coram: Hon. Cons, V.-P., Kempster, J.A. & Penlington, J.

Date of hearing: 22nd April, 1987

Date of delivery of judgment: 22nd April, 1987

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. The two Applicants, Cheng Kim Hung and Lam Chung Keung who, for convenience we call the 1st and 2nd Defendants respectively, were convicted by a jury before His Honour Judge Leong sitting as a Deputy Judge of the High Court on counts of manufacturing a dangerous drug and also on counts of possession of a dangerous drug for the purpose of unlawful trafficking.

2. The 1st Defendant was convicted on three such secondary counts and the 2nd Defendant of one, being acquitted of the other two.

3. Both wish to appeal against the manufacturing convictions. The 2nd Defendant also wishes to appeal against that with regard to the possession for trafficking. Mr. Sceats who has appeared for him below and before us, very properly in our view, concedes that if the application on the first count fails then there is no chance of success for the application on the second count.

4. The basic elements .of the evidence against them were that they both spent the night, or at least such part of the night as went from 7.15 p.m. on the 14th February last year to quarter past three the following morning, in a flat which is used as a hair saloon. The business appears to be carried on by the 1st Defendant. Subsequently in the flat were found paraphernalia suitable for making heroin and some other amounts of heroin which formed the subject of the third and fourth counts against the 1st Defendant.

5. Both Defendants were arrested early the following morning. At about 3 o'clock, the 2nd Defendant came out and drove his taxi, which had been parked all night in a neighbouring street, to the ground floor of the premises in question. Shortly afterwards the 1st Defendant came down and put something into the boot of the taxi This was subsequently found to be No. 3 heroin. It formed the basis of the possession charge of which both were convicted.

6. There is no doubt Whatsoever, and both counsel so concede, that the hairdressing saloon had been used for the manufacture of heroin at some stage. The crucial question, which is the same whether one approaches it by a direct route or by the use of the presumption in section 45, is whether manufacture had taken place on the night in question. There were certain matters of evidence which tended to show that it had. Firstly, there was the evidence of the police officers that the packet of drugs which had been put into the boot of the taxi was still warm. Secondly, there was the evidence that on both Defendants was noticed a very pungent odour; also that the flat in question had the same odour when the police went up shortly afterwards. The evidence of the Government Chemist was that such an odour is connected with the use of hydrochloric acid in the making of heroin of one kind or another. Thirdly, there was evidence of wet plastic bags found in the flat, together with a wet mop showing heroin traces, and that the floor throughout had been recently mopped up. Fourthly, there is the evidence of Inspector Tsang who said that he saw fumes in the flat, presumably of hydrochloric acid, when he went up shortly after the arrest.

7. In the absence of a satisfactory explanation, - and it is quite clear that the jury did not believe either story put forward by the two Defendants, - in our view that is sufficient evidence on which a jury could convict. The basic ground of complaint by Mr. Howard, who appears for the 1st Defendant, is that inconsistency in the police evidence was not properly put to the jury. The inconsistency seems to us to be based on a suggestion that, by reason of the pungent odour found there, only what we might call "yellow" heroin had been made that night. We are not persuaded that that is a necessary conclusion from the evidence.

8. Mr. Sceats has taken us very carefully through the evidence. He has pointed out passages relating, for example, to the clothing of the Defendants at various stages throughout the night, the smell and the time that it would last. All the matters he has mentioned are matters very properly for the consideration of a jury, and we have no doubt that the jury in this instance did consider them. But we are not persuaded that because of these matters, the jury must have come to a wrong conclusion as to the manufacturing.

9. Therefore we refuse the applications in respect of the manufacturing count. It is not necessary then to deal with the application in regard to count two made by the 2nd Defendant.

10. The 1st Defendant no longer wishes to proceed with his appeal against sentence. For the 2nd Defendant it is suggested that he played a lesser part in the manufacturing, because it was the 1st Defendant who for all practical purposes owned the premises and because some of the equipment was contained in a room to which only he apparently had the key. The judge said that he could make no distinction between the parts played by the two Defendants. With every respect to counsel, as far as the manufacturing on that particular night is concerned, we take the same view. Both applications with regard to sentence are therefore refused.

William Howard, Q.C. & Ian Polson (M/s Tang & Knight) for D1

Barry Sceats, assigned by (D.L.A.) for D2

Peter Callaghan, Crown Counsel for Respondent