Case Document

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CACC000936/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 936 OF 1975

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BETWEEN
	LEE KEE	1st Appellant
	CHAN MUI KAM	2nd Appellant
	and
	THE QUEEN	Respondent

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Coram : Briggs, C.J. & Pickering, J.

Date of Judgment: 2nd January, 1976.

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JUDGMENT

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Pickering, J. :

1. The Appellants, who are man and wife, were jointly convicted of the offences of manufacturing dangerous drugs and of being in possession of dangerous drugs for the purpose of unlawful trafficking therein. The first Appellant was sentenced to fifteen years' imprisonment upon each charge, those sentences to run concurrently. His wife, the second Appellant, was sentenced to one year's imprisonment upon each charge, likewise concurrently. The first Appellant appeals against both his convictions and sentences and the second Appellant against her convictions.

2. The two were found by the police in premises 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.

3. Several grounds of appeal were raised but we think it necessary to refer to only one which was to the effect that the Learned Commissioner gave the jury an erroneous direction as to the effect and meaning of Section 45 of the Dangerous Drugs Ordinance, Cap. 134 in that he failed to direct them:

	(a)	that the presumption that a person found in premises is presumed to be manufacturing dangerous drugs if dangerous drugs are being manufactured therein only applies where the process of manufacture is in progress at the time of the finding therein of such person;
	(b)	that there is no presumption created by that section that a person is manufacturing dangerous drugs from his being found in premises in which equipment or material is found referable to the manufacture of dangerous drugs;
	(c)	that the finding of such equipment in premises only raises a presumption against a person found in such premises where the offence charged is that of doing an act preparatory to the manufacturing of a dangerous drug.

4. Section 45 reads as follows :-

"Where it is proved that a person was found in, or escaping from, any premises, or the part of any premises, in which -

	(a)	a dangerous drug was being manufactured; or
	(b)	equipment or material which is referable to the manufacture of a dangerous drug was found.

such person shall, until the contrary is proved, be presumed to have been manufacturing or doing an act preparatory to the manufacture of the dangerous drug."

5. It was the contention of Mr. Sedgwick, for the Appellants, that although the couple were found in premises where both dangerous drugs and equipment referable to the manufacture of such drugs was found, no presumption as to manufacturing arose since at that time the process of manufacture was complete. We think that this interpretation strains the clear intention of the section.

6. The same point fell for interpretation in Criminal Appeal No. 836 of 1971 which, surprisingly, went unreported. In that case the charge under consideration was the unlawful manufacture of a dangerous drug. It was there conceded that the Appellant was found in premises in which there was both a quantity of opium and equipment referable to the manufacture of dangerous drugs. In that case the Court 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."

7. We agree. Where an accused person is found upon premises in which both dangerous drugs and equipment referable to the manufacture thereof is 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 its manufacture, the presumption of doing an act preparatory to the manufacture attaches.

8. In the present case the presumption of manufacture arose and was not rebutted. Likewise, by virtue of the quantity of the drugs found, there arose the presumption of possession for the purposes of trafficking which again, was not rebutted.

9. Accordingly we dismissed the appeals against conviction.

10. As to the first Appellant's appeal against sentence, whilst the sentences were undoubtedly heavy, so also were the offences very grave and we saw no reason to interfere with the sentences.

(W.F. Pickering)

Representation:

A. Sedgwick & A. Hoo (Hoosen & Co.) for Appellants.

Stevenson, C.C. for Respondent.

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