The Queen v. Law Chik-leung

CACC000612/1983

Headnote

Section 45 of the Dangerous Drugs Ordinance, Cap. 134 provides that :-

2.             The presumption of manufacturing may be raised by evidence of either (a) or (b) whether a quantity of finished product is found or not.

Date of hearing : 19th August, 1983.

Date of delivery of judgment : 28th September, 1983.

BETWEEN

_________

Coram: Hon. Leonard V.P., Cons & Yang, JJ.A.

Date: 28th September, 1983.

__________

JUDGMENT

__________

Cons, J.A. :

1. The appellant was convicted on three counts : -

2. The offences were committed in a 6th floor flat in Lucky Court, Tsuen Wan, where the police found the appellant together with the particular drugs, the subject of the 2nd and 3rd counts, and a quantity of equipment and material undoubtedly referable to the manufacturing of the drug mentioned in the first. The appellant was alone at the time.  No manufacturing was taking place nor indeed was the equipment even set up, different pieces being found, some of them put away, in different rooms of the flat. The appellant's evidence that no manufacturing had taken place in the six weeks that he had lived there since illegally entering Hong Kong from China and that what  later turned out to be the dangerous drugs was brought in by the relative who was giving him shelter was rejected unanimously by the jury.

3. Only one ground of any substance has been argued in this appeal, namely that the judge misdirected the jury as regards the well-known presumption contained in Sec. 45 of the Dangerous Drugs Ordinance Cap. 134 :

It is argued that the direction goes too far, because the finding of mere equipment or material does no more than raise the presumption that the person found in the premises was doing an act preparatory to manufacture; it does not raise the presumption that he was or had been manufacturing. The authority relied on is the recent decision of this court in The Queen v. YU Tit-hoi and others^(1).

4. The headnote to the report reads in part:

"S.45 set up two distinct presumptions - the first arising upon proof that manufacture was in process or had been completed or was about to begin at the time of discovery; the second arising where the evidence did not go so far, but showed only that the equipment and other articles found on the premises were clearly referable to such manufacture."

With respect to the learned editors we doubt whether the words or had been completed; or was about to begin" are justified by the judgment itself. Be that as it may however, the case is clear authority for the submission made to us. The argument advanced to the court was by way of comparison with Sec. 6 of the Ordinance which creates the two offences : a) manufacturing a dangerous drug and b) doing or offering to do an act preparatory to or for the purpose of manufacturing a dangerous drug. Those two provisions, counsel argued, could most sensibly be construed by recognizing that two quite distinct presumptions were created by Sec. 45, corresponding to the two offences created by Sec. 6. The argument was apparently accepted by the court, which also relied upon the relevant definition of "manufacture". It would seem also that counsel who then appeared for the Crown conceded that Sec. 45 did set up two presumptions.

5. Counsel who has appeared for the Crown before us makes no such concession. He argues forcefully to the contrary and makes so bold as to suggest that in this respect YU Tit-hoi was wrongly decided. That is however not a question for us. We consider ourselves constrained to follow earlier decisions unless, for example, they can be distinguished or are inconsistent with other earlier decisions. Counsel submits that both of these approaches are open.

6. As we have already indicated the court in YU Tit-hoi was influenced by the definition of "manufacture" as it was appropriate to that case :-

7. Although the court commented that the position might have been different had the amending legislation been in force at the time of the trial, we are inclined to think that in fact the court's decision would have been the same, in view of the reason on which it was founded :

"It is plain that in the definition as it then stood the emphasis is wholly on the existence of an actual process. Read with s.45 the obvious intention is to fix persons in or escaping from premises with knowledge of what had manifestly been going on about the time of discovery by police or other persons."

8. Undoubtedly the amendment has increased the scope of what could be regarded as "manufacture", but we do not ourselves discern any change in emphasis.

9. Counsel's second argument takes us to the full court case of R. v. LEE Kee ⁽²⁾ . There the two appellants "were found by the police in remises in which there was a large quantity of dangerous drugs together with a quantity of equipment which was described by the Government Chemist as being incapable of use for any other purpose than that of the manufacture of dangerous drugs". It was argued on appeal that no presumption arose under Sec. 45 since at that time the process of manufacture was complete. The court rejected that contention as "straining the clear intention of the section".

10. LEE Kee had been brought to the attention of the court in YU Tit-hoi. Counsel for the Crown apparently relied upon a passage in the judgment :-

"Where an accused person is found upon premises in which both dangerous drugs and equipment referable to the manufacture thereof are found, the presumption of manufacture arising under Section 45 attaches to him. Where he is found in premises in which there are no dangerous drugs but there is equipment referable to their manufacture, the presumption of doing an act preparatory to the manufacture attaches."

The court saw no reason to differ from the views there expressed saying :

"In Lee Kee the actual process was over and the finished product, heroin, as well as the essential equipment for its production were quite sufficient to show that the accused had been manufacturing at or about the time when they were arrested."

11. It is a little difficult to understand why, if the finished product and the equipment were in themselves sufficient to establish that the accused had been manufacturing, the Crown needed to rely upon the presumption at all. Yet the wording of other parts of the judgment seems to indicate that it did.

12. We know little of the actual facts in Lee Kee, the report containing no more than we have already set out. However, the court expressly followed an earlier decision in which the Full Court upheld a conviction for manufacturing in which the sole evidence was the presence of the defendant together with suitable equipment : R. v. SO Ching-kan ⁽³⁾. We appreciate that in both cases there was also the presence of a quantity of the finished product, but we do not see why this should make any difference. Of course it would show that there must have been "manufacturing " at some stage, but it would not necessarily follow that the manufacturing had been on those particular premises or at any particular time. We do not for our part find it possible to reconcile the decisions in this manner. 

13. We must accept that there is some imprecision in the language chosen by the draftsman to express the intention of the Legislature in Sec. 45, yet eve feel that had the intention been to create two separate and distinct presumptions then at least two separate and distinct paragraphs would have been used. It is now over eleven years since SO Chino-kan was decided and the interpretation of Sec. 45 which lay behind the decision must have been acted upon in many cases apart from LEE Kee. In our view that interpretation is to be preferred.

14. For these reasons we are satisfied that the Commissioner did not misdirect the jury and the appeal is dismissed. It is not necessary then to express an opinion on whether it would be open to this court to substitute a conviction for doing an act preparatory to manufacture.

(1)    (1983) H.K.L.R. Page7

(2)    (1976) H.K.L.R. at 58

(3)    Unreported, Cr. App. 836 of 1971

Representation:

Mr. Walter Lau, (D.L.A.) for Appellant.

Mr. John McNamara, Clown Counsel for Respondent.