The Queen v. Chau Wing and Another

1987 No. 14
(Criminal)

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Kempster, J.A., Penlington & de Basto, JJ.

Date of hearing : 12th May 1987

Date of delivery of judgment : 12th May 1987

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JUDGMENT

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Penlington, J.

1. The applicant was convicted by Addison J. and a jury on charges of manufacturing dangerous drugs and of being in possession of those drugs for the purpose of unlawful trafficking.

2. The facts of the case were briefly that on the 18th June 1986 a police party entered premises at Pak Sha Village, Yuen Long where they found the 2nd Defendant. Clearly No. 3 heroin was being prepared and 17.4 kilos was found, together with the usual paraphernalia. It was a hot day but numerous heaters were on which were clearly being used to dry the heroin which was being treated with caffeine to make it go further.

3. The applicant, dressed only in a pair of shorts, was seen to jump from a window of the premises and was caught by other members of the police party. In doing so, he injured himself and when he was examined, it was found that there were traces of heroin on his right hand.

4. The applicant gave evidence saying that he came to the premises to return the 1st defendant's car but that he was suffering from diarrhoea and had in fact already fouled his clothes. The 1st defendant allowed him to enter the premises so as to use the toilet and gave him a change of clothing. It was while he was still changing that the police party entered the premises and that was why his personal possessions were found there after he had attempted to escape. He said he had taken them out of his soiled clothes and had not had a chance to put them into the clean ones. He said that in the process of changing he had moved a bowl and that was his explanation as to why traces of heroin were found on his hand. When he first entered the premises he was told by the 2nd defendant that medicine was being manufactured but that, when the police party came, the 2nd defendant told him that it was in fact heroin and that was why he attempted to escape. He said that at that time he noticed a lot of “white powder” about - a colloquial name for heroin.

5. There was no dispute that manufacturing of heroin was going on in the premises from which the applicant was found escaping and accordingly Section 45 of the Dangerous Drugs Ordinance applied. That section provides that any such person shall be presumed to be manufacturing heroin, or doing an act preparatory to such manufacture and to know the nature of the drugs being manufactured.

6. The sole ground of appeal is that the trial Judge failed properly to direct the jury on the question of the applicant's knowledge; whether he knew what was being manufactured was heroin. In his summing up, the Judge said to the jury :-

“If therefore you find that the prosecution has proved beyond reasonable doubt that dangerous drugs were being manufactured in those premises at that time and that the 1st defendant was then escaping from those very same premises, then he is deemed to have been manufacturing dangerous drugs knowing that dangerous drugs of that kind until he prove the contrary.”

This is a short but, we consider, an adequate direction. It is not disputed that dangerous drugs were being manufactured and it is not disputed that the applicant was seen escaping from the premises. The onus, therefore, is clearly on him to show that he did not know what in fact was being manufactured. We are quite satisfied that the directions given by the trial Judge left the jury in no doubt whatever that this was an element that they had to decide and that, on the facts of this case, the onus was on the defendant to show that he did not know what was being manufactured. The trial Judge went through the applicant's evidence very carefully. There could be no doubt whatever that the jury were fully aware of what that evidence was and also quite clearly the jury did not accept it, which, on the facts here, can be no surprise. There is no reason for us to interfere with the jury's finding and the application for leave to appeal against conviction is dismissed.

Sentence

7. The 2nd defendant in the trial seeks leave to appeal against a sentence of 12 years for manufacturing. He is represented by Miss Tam who has ably argued every possible ground in his favour in mitigation. Those are that the trial Judge, while he did give a discount of some 20% for the applicant's plea of guilty, has not given a further additional discount because of his co-operation with the police. She also argued that the applicant was an employee and therefore should not be sentenced on the basis of a principal offender even though the amount of drugs which were found was very substantial. That is not as relevant as it might be because he was employed to do a job and simply handled whatever he was given. There is no doubt whatever that this was a large scale operation; photographs of the flat showed that it was being used for virtually nothing else except the manufacture of No. 3 heroin. It is also quite clear that the evidence against the applicant was totally overwhelming. We have be8n referred to various cases, some also involving dangerous drugs, and in particular Miss Tam relies on R. v. Chim Cheuk Fung where a sentence of ten years was imposed in this Court for manufacturing 4.6 kilos of heroin.

8. While other cases on sentence may be helpful as guidelines, each must be treated on its own facts. In that case the applicant had given evidence against fellow defendants and quite clearly the Court took into account that his time in prison was likely to be somewhat difficult. Here, while we accept that the applicant did offer to co-operate and gave the pager number of a man called Ah Fei, he did not in fact give evidence. It may be that it is not his own fault but he certainly does not come within the “supergrass” category and Miss Tam does not seek to persuade us that such is the case.

9. Taking into account all the factors involved, and there is no need for this Court to reiterate what has been said on so many occasions relating to the appalling harm to the public of drug manufacturing, we do not consider that the trial Judge was in error in passing the sentence which he did and the application for leave to appeal against sentence is dismissed.

Mr. Howard, Q.C. & Mr. M.I. Kenny (William Au & Co.) for Dl.

Miss Winnie Tam (Alick Au & Massie) for D2.

Mr. M.D. Wilson, Counsel for Respondent.