So Ching Kan v. The Queen
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CACC000836/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 836 OF 1971 -----------------
----------------- Coram: Huggins & Leonard, JJ. Date of Judgment: 20th March, 1972. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Appellant was one of four persons jointly charged with unlawfully manufacturing a dangerous drug. The Appellant was further charged on two charges of possession of a dangerous drug for the purpose of unlawful trafficking. At the beginning of the trial he pleaded Not guilty to all the charges but in the course of the trial he pleaded Guilty to the two charges of possession for the purpose of trafficking. He was found guilty on the manufacturing charge. The learned District Judge passed a sentence of three years' imprisonment on the manufacturing charge and concurrent sentences of one year's imprisonment on each of the possession charges. The Appellant applies for leave to appeal against conviction and sentence. 2. This prosecution was a consequence of a watch kept over a period of three days upon the Appellant and upon some huts which he visited. The huts formed part of a poultry farm and were situate on a hill side behind Block 24 of the Kwun Tong Resettlement Estate. Adjacent to the house were a few square yards of land which were enclosed with wire netting and barbed wire. Access to the farm could be obtained by a footpath on the west side or by a footpath with steps on the east side. On either side entry was obtained through a door in one of the huts. It is clear that the poultry farm was an entity and there is no dispute that it constituted "premises" within the meaning of the relevant provisions of the Dangerous Drugs Ordinance. The Appellant was observed entering and leaving the farm on a number of occasions and in particular he was seen to leave it with a package at 1305 hours on 26th August 1971. Exactly one hour later he was arrested in Hung Hom. He then had in his possession a package which was later found to contain opium. After taking a cautioned statement from the Appellant the police went back to the poultry farm. It was then approximately 1530. Thereafter a large quantity of opium was found at the farm, together with equipment which was referable to the manufacture of a dangerous drug. 3. The Appellant was professionally represented only in respect of the application for leave to appeal against conviction. The first point taken by counsel on his behalf is that the presumption which may in some circumstances arise under s.45 of the Dangerous Drugs Ordinance did not arise in the present case. There can be no doubt that if she be right in this submission the conviction must be quashed, for there was no evidence to connect the Appellant directly with the manufacture of a dangerous drug. Section 45 is in these terms:
It is conceded that the Appellant was found in the premises and also that equipment referable to the manufacture of a dangerous drug was found in the premises. It is true that no one testified to having observed the Appellant while he was on the premises but he was seen to go in and then to come out with the package and it is presumably on the basis of Thomas v. Powell(1) that counsel conceded he was "found in" the premises. We express no concluded view upon the comparative authority of Thomas v. Powell(1) and Reg. v. Lumsden(2) nor upon the question whether they can be distinguished from the present case. Counsel preferred to found her argument upon the point that on the true interpretation of the section the finding of the accused person and of the equipment must be contemporaneous before the presumption can arise. Counsel for the Crown submits that not only does the section not so state but that this interpretation is contrary to the general tenor of the section. He points in particular to the tense of the verb in para.(a) - "was being manufactured". We think that the tense of that verb and, indeed, everything else indicates that the rationale of the presumption is that the presence of the accused person and of the equipment in the premises at the same time show at least a possibility of a nexus between the two. Once it is conceded that "found in" means "proved to have been in", which is the effect of Thomas v. Powell(1), then the presumption arises as soon as it has been proved that both the accused person and the equipment were in the premises at the same time. In the present case it is conceded that the Appellant was "found in" the premises at 1305 and so it had to be shown that the equipment had been "found in" the premises at that time. The Appellant was not arrested until one hour after he left the premises and the equipment was not actually perceived by the police until even later, but there was evidence from which it could be inferred that both the Appellant and the equipment were in the premises at 1300. 4. It is then submitted that on the evidence of the Prosecution itself the presumption was rebutted in the present case. The Government Chemist who visited the premises was cross-examined as to the time when the equipment found had been used for the manufacture of dangerous drugs. He said:
It is contended that the proper inference is that manufacture had not taken place within the previous week and that as the earliest time on which the Appellant was seen by the police in the premises was midday on 24th August he could not have been involved in any manufacture to which the presumption could fairly relate. Although the finding of the person accused and of the equipment must be contemporaneous we do not think it follows that the evidence must further establish that the accused person was found in the premises at a time when manufacture may have been going on. That would be to restrict the presumption to a greater extent than the words justify. But counsel goes on to say that since the charge alleged manufacture "on or before 26th August" the application of s.45 must be limited to the presumption of manufacture within a reasonable period ending on 26th August: it would not, for example, justify a conviction if it were possible in some way to show that manufacture had not taken place within the preceding twelve months. Such evidence would no doubt go a long way to rebutting the presumption but counsel for the Crown rightly says that unless time is of the essence of an offence a variation between the date assigned in the indictment and that proved is not material, subject only to the proviso that the defence shall not have been misled. However, in our view no question of this kind arises in the present case because we do not think the evidence of the Government Chemist bears the interpretation sought to be put upon it. We must assume that the narrative record correctly represents the substance of the questions and answers and the witness did not say that manufacture could not have taken place less than one week before. The only evidence which tends to advance the time of the last manufacture is that to the effect that the three stoves which formed part of the equipment of manufacture were cold. 5. The learned judge having disbelieved the evidence of the Appellant found that the presumption had not been rebutted. We think he was entitled to reach that conclusion on the evidence and the appeal against conviction is dismissed. 6. The Appellant had a clear record. It is conceded that the manufacture which had obviously taken place in these premises was the manufacture of prepared opium, intended for smoking as opium: there was no question of the manufacture of diamorphine hydrochloride or one of the other more potent derivatives of opium. Nevertheless it is apparent that manufacture on a considerable scale had been carried on and we are told that the value of the drug actually found exceeded $100,000. We are unable to say that the sentences were manifestly excessive and the application for leave to appeal against sentence must also be dismissed. 20th March, 1972. Representation: (1) (1893) 57 J.P. 329 (2) 1951 2 K.B. 513. |