Lam Wai-ming and Anohter v. The Queen
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CACC000981/1977
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 25th July 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: The first ground of appeal of the 1st Appellant relates to the directions concerning the statutory presumptions. It is said that the judge never distinguished between the standard of proof upon the general issue and that required to rebut any presumption which arose. Indeed, Mr. Jackson-Lipkin goes further and submits that the judge's whole approach to the presumptions was wrong, for it did not indicate the possibility of rebuttal. With respect we do not think that is right. The substance of the direction given appears in the following passage:
No doubt the reason why the judge took this approach instead of employing the more usual phraseology was to explain to the jury the underlying nature of the presumptions. We doubt whether anything was to be gained by this approach and it has certainly given the Appellant scope for the argument which has been addressed to us. This approach should not be adopted again. Nevertheless, on analysis we think it was merely another way of saying that the fact in question had to be presumed unless the presumption was rebutted by evidence which disproved it on a balance of probabilities. Even that would not have been strictly accurate, because on a true construction of the statute a presumption arises, upon proof of the specified facts, whether or not it is subsequently rebutted. By reading the word "until" as "unless" the learned judge suggested that the presumption might not arise even where the specified facts were proved. That was an error but, if anything, it favoured the Appellant. In view of the way in which the judge approached the matter it might only have confused the jury had he expressly said that the burden of proof on the Appellant was "not as heavy as that on the prosecution": he repeatedly said that the facts were not to be presumed (or, in his words, the inferences were not to be drawn) if they "would probably be wrong" and that was clearly placing on the defence a lighter burden of proof than proof beyond all reasonable doubt. 2. The third limb of the 1st Appellant's first ground of appeal is in our judgment based upon a wrong premiss, for it suggests that "on proof of certain facts being given the presumption of innocence ceased". One of the cases cited by Mr. Jackson-Lipkin establishes that the presumption of innocence never ceases simply because facts giving rise to a statutory presumption have been proved. It is always for the Crown to prove the guilt of an accused beyond all reasonable doubt: Chan Sui Shing v Reg. 1974 H.K.L.R. 482. Under some of the Canadian statutes there does indeed appear to be a rebuttable presumption of guilt (see, for example, R. v Lobbins (1940) 74 C.C.C. 274), but that is not the case here: all that may be presumed is one or more of the facts necessary to be proved to establish guilt. Once presumed those facts are deemed to be proved beyond all reasonable doubt until disproved, but that is not the same thing as presuming guilt. The judge in the court below properly directed the jury that the guilt of the 1st Appellant had to be established beyond all reasonable doubt. 3. The second limb of his first ground and ground 8 are tantamount to an allegation of a failure adequately to put the defence of the 1st Appellant on the first count. Having regard to the manner in which the judge directed the jury as to the presumption, what was required was some guidance as to the evidence which might lead the jury to think that "the inference" that the 1st Appellant was manufacturing dangerous drugs "would probably be wrong". The substance of the 1st Appellant's defence was that, although he did "escape from" premises where manufacturing was in progress, he did not know what was going on. The learned judge correctly told the jury that there was no presumption as to knowledge on this charge and he did review the evidence of the 1st Appellant. It is true that he did not tell the jury expressly that the scientific evidence as to traces of drugs found on the 1st Appellant's clothing (but not under his finger nails or in his hair) was consistent with the 1st Appellant's own story, but that does not seem to us to be a fatal omission: he certainly never suggested that it was inconsistent with the 1st Appellant's story and we do not think it can fairly be said that the defence of this Appellant was not put before the jury with sufficient clarity to ensure fair verdicts on the three charges. Once there was a presumption as to manufacturing (and the jury clearly were not satisfied that this presumption had been rebutted) it was inevitable in all the circumstances of this case that the jury would be satisfied also as to the knowledge of what was being manufactured. 4. It follows that the appeal of the 1st Appellant on count 1 must be dismissed. 5. As regards counts 2 and 3 the position is not so clear. The learned judge did not give a detailed direction as to the meaning of "possession or control" or "joint possession or control", although he expressly directed the jury that knowledge was an essential ingredient of the offences charged in both these counts (see page 454A). What he did not do was to indicate any evidence from which such knowledge might properly be inferred. It is said that no presumption arose against the 1st Appellant on these two counts. However, s. 45 is not restricted to cases where the charge laid is one of manufacturing dangerous drugs: compare s. 17 of the Opium and Narcotic Drug Act 1929 of Canada upon which the decision in R. v Lee Fong Shee (1933) 60 C.C.C. 73 was based. The presumption of manufacturing arises whenever the conditions prescribed in the section are fulfilled. The learned judge did not tell the jury that the presumption under s. 45 was equally applicable to the second and third counts: indeed he said that as regards the 1st Appellant there was no statutory presumption on the second and third counts (his reference to the first count on page 455 at letter I of the record was obviously a slip). That was not strictly correct, but it favoured the Appellant. On the directions given to the jury we think they should have acquitted the 1st Appellant on counts 2 and 3, but in the circumstances of this case it was inevitable that if he were guilty of manufacturing he must also have been guilty on the possession charges, for it is inconceivable that he could have been manufacturing a salt of esters of morphine without knowing that he had in his possession or under his control both an ester of morphine and an acetylating substance: his knowledge as to the nature of the substances he was using was an inference not from "the conclusion of guilt of the offence of manufacturing dangerous drugs charged in the first count", as suggested in the Notice of Appeal, but from the evidence which was believed and the fact which was necessarily presumed, the jury having clearly disbelieved the evidence with which it was sought to rebut the presumption. We think this is a case where we can properly apply the proviso. 6. We come now to the application of the 2nd Appellant. In so far as Mr. Mayne adopted the arguments advanced on behalf of the 1st Appellant what we have already said applies to this Appellant also. Again it is contended that the defence was not adequately put. Indeed, it is objected that the learned judge, in dealing with the defence of the 1st Appellant, presupposed the guilt of the 2nd Appellant. Undoubtedly he did at one point predicate the guilt of the 2nd Appellant, but it does not follow that the 2nd Appellant has any cause for complaint. He was the owner of the flat and presumptions arose against him on each charge. Moreover, two thumb prints (identified as his) were found on one of the bowls being used in the manufacture of the drugs. In a pocket of a jacket, admitted to be his, were found the keys of the flat and two packets of chemicals which were clearly connected with the manufacture. The judge dealt at some length with the 2nd Appellant's defence in relation to the thumb prints and the jacket, but he did not directly refer to the 2nd Appellant's evidence, or that of the 3rd Defendant, as to the arrangements made for the use of the flat, as to the 2nd Appellant's having been drinking and gone to sleep or as to the 2nd Appellant's reason for being on the balcony. It is no answer to this that the evidence had been reviewed by counsel in their addresses and that the judge had told the jury they must decide the case upon the whole of the evidence whether he mentioned it or not: the 2nd Appellant was entitled to have the evidence which supported his defence placed before the jury in substantially the same detail as the evidence which supported the case for the Crown. That was not done and his appeal must be allowed. Nevertheless the case against him was such that we think we ought to direct a new trial. 25th July 1978. Representation:
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 25th July, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: I find myself, with due respect, unable to agree as to the 1st Appellant. 2. It was urged by Mr. Jackson-Lipkin, leading counsel for the 1st Appellant that, in giving directions regarding the operation and effect of the statutory presumption relating to the manufacture of dangerous drugs contained in section 45 of the Dangerous Drugs Ordinance (Cap. 134), the learned commissioner never distinguished between the standard of proof required of the Crown to establish the case beyond reasonable doubt and the standard required of the defence (where facts giving rise to a presumption were proved) to rebut that presumption on a balance of probabilities. That the presumption applied to the 1st Appellant is beyond doubt; he was seen escaping from the premises by way of the balcony on to the roof and inside the premises there was indisputable evidence of the manufacture of dangerous drugs. 3. I think this ground of appeal has merit. The learned commissioner (as he then was) adopted a line of approach novel to any of the members of this Court in his direction to the jury regarding the presumption of manufacture and whilst there is nothing inherently wrong in novelty it seems to me that on this occasion it led the commissioner into error, an error which was repeated several times. The learned commissioner referred to what the Ordinance calls presumptions as presumptions or "inferences" which the law sets out for this particular type of case. The actual direction was:-
4. Later the direction went:-
5. Dealing specifically with the manufacturing charge, a later direction was:-
6. At a still later stage, from the basis that the jury had reached the point at which they were fully satisfied that dangerous drugs were being manufactured and that whichever appellant they were considering was either found in or escaping from the premises where manufacture was taking place, the direction ran:-
7. In summarising the position regarding the presumption of manufacture the learned commissioner said:-
8. With great respect to the learned commissioner this repeated emphasis that, given certain facts, the jury is to draw an inference unless, on the whole of the evidence, it appears to them that such inference would probably not to be the correct inference, does not accurately reflect what the Ordinance provides in regard to presumptions and it imposes upon the jury an additional mental process which the Ordinance does not lay upon them. It may be helpful at this point to set out the terms of section 45 of the Dangerous Drugs Ordinance:-
9. Thus it is that, given that the process of manufacture was taking place in particular premises and that an accused person was found in or escaping from those premises, the presumption of manufacture applies entirely automatically. It latches on to the person of the accused without any necessity for the jury to draw an inference "unless". The presumption is there and it is then the task of the jury at the end of the day to decide whether or not the accused has been able to rebut that presumption upon the balance of probabilities but it is not for the jury to pick its way through the evidence and decide that, in the event, the presumption never really did arise. Given the basic facts, the presumption, is automatically triggered and it is not open to the jury to deny its existence but rather for the accused to rebut it on a balance of probabilities. 10. It could be argued that the misdirection favoured the 1st Appellant but I consider that it must have confused the jury the more so since throughout no adequate direction was given to the jury as to the standard of proof required of the 1st Appellant to rebut the presumption. Indeed the phrase "balance of probabilities" never appears throughout the summing-up and the word "rebut" is similarly absent. In my view no harm can be done, and a degree of confusion might be avoided, by adherence to the terminology of the Ordinance rather than by bringing in an analogy with inferences and then suggesting to the jury that even though the established basis of the presumption was present, they need not necessarily draw the "inference". 11. It was the further complaint of counsel that the evidence which might have been found capable of rebutting the presumption of manufacture was never brought to the attention of the jury in the course of the summing-up. It was the evidence of the 1st Appellant that he had gone to the premises for the perfectly legitimate object of securing a relief driver for one day for his mini-bus since the original driver was on the day in question going to a wedding. This story was supported by the finding in the premises after the arrest of the three men of the key to the actual mini-bus owned by the 1st Appellant and was substantiated also by the original driver who gave evidence and produced the wedding invitation. The 1st Appellant said that he had stayed late drinking with the 2nd Appellant and had been persuaded to stay the night and it is the fact that his day clothes were found in the flat whilst at the time of his arrest he was wearing pyjamas belonging to the 2nd Appellant. His evidence continued that he had gone to sleep in a room other than that in which the manufacturing paraphernalia had been found and the 2nd Appellant gave similar evidence whilst the 3rd defendant, who had not arrived at the flat before the 1st Appellant went to sleep, spoke of the 1st Appellant emerging from an inner room when the police hammered on the door. The 1st Appellant said that he was awakened by the hammering at the door and that upon entering the outer room he saw the 3rd defendant there who called out that they would all perish. According to the 1st Appellant, he thought not of the police but of persons coming for revenge and so went out onto the balcony from where he climbed up on to the roof. The learned commissioner mentioned these matters so that counsel's complaint that they were never brought to the attention of the jury is unjustified but I agree with counsel that these matters were mentioned without the commissioner ever telling the jury that if that evidence was believed it was capable of rebutting the presumption of manufacture. 12. In summary the existence or otherwise of the presumption was left to the jury by way of a misdirection which was repeated several times whilst the process of rebuttal and the standard of proof required for rebuttal were never explained to the jury who were similarly left unreminded that the evidence of the 1st Appellant, if believed upon a balance of probabilities, was capable of rebutting the presumption. In those circumstances I would conclude that a verdict of guilty upon the charge of manufacturing cannot be sustained against the 1st Appellant and must be set aside. 13. Once the manufacturing charge against the 1st Appellant went, it would have followed that the two charges of possession must fall with it for there was no direct evidence of possession by the 1st Appellant and no presumptions as to possession, as opposed to manufacture, arose against him. Thus I would have been for setting aside the conviction of the 1st Appellant upon all three counts. 14. I agree that the appeal of the 2nd Appellant should be allowed and that there should be a new trial. Representation: M.H. Jackson-Lipkin, Q.C. and A.W. Sedgwick (Gallant Y.T. Ho & Co.) for 1st Appellant. R.E. Mayne and D. Yam (Director of Legal Aid) for 2nd Appellant. J.W. Dick for Crown/Respondent.
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 25th July, 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: I agree with the judgment which has just been delivered except as to one point, namely whether the learned judge misdirected himself when he considered the possible effects which the immunities given to the accomplice witnesses might have upon the credibility of their evidence. His approach to those witnesses was summed up in these terms:
It is, of course, the sentence which I have emphasized that is complained of: Mr. Hidden submits that it indicates such a lack of appreciation of the real dangers inherent in accomplice evidence as to invalidate the warnings which were undoubtedly given. The judge appears to be saying that the giving of an immunity to a witness is a guarantee of the truth of his evidence. In other words, he suggests that the dangers inherent in the evidence of an accomplice is somehow lessened if he is granted an immunity. 2. One difficulty in these cases is that one does not always know exactly what the Crown expected to gain from the offer of immunity. I would like to think that usually the giving to a witness of an immunity against prosecution is intended to ensure that he will give evidence which (1) he has said he can give, (2) he has asserted to be the truth, and (3) the prosecution believe to be the truth. It is implicit that that evidence will implicate the defendant. Elements (2) and (3) are reflected in the form of the immunity generally given, which includes a condition that he shall give "true evidence". In the present case, however, it appears that the 16th Defendant was offered immunity as an inducement to give evidence, it being assumed that he was guilty and that he could give evidence which would assist the prosecution. He refused, maintaining his innocence. In such a case the prospective witness might be persuaded to fabricate a story along the lines which he believes is desired and subsequently to maintain that story in the witness-box, despite the immunity, because he knows the prosecution believe it to be the truth. It is the whole basis of the grant of any immunity that the prosecution does believe that the evidence which the witness will give is true. The point which is made, therefore, is that in practice the effect of a partial immunity may be to give further encouragement to the witness to give the evidence which he has said he will give, even though he has falsely asserted it to be the truth. That is a danger inherent in the evidence of any accomplice called by the Crown and the danger is there no matter whether he has been granted an immunity or not. It may be increased by the grant of an immunity. What is suggested is that where the immunity is complete - that is to say, where it protects the witness from all the possible consequences of giving true evidence - the witness who, in order to obtain the immunity, has asserted to the police or the Independent Commission Against Corruption a story to be the truth which in fact is false is under less pressure to repeat that story in the witness-box, because the condition upon which his immunity depends will be satisfied if he tells "the truth": he has little to fear from changing his story. If the story given in evidence does not implicate the defendant it will be unlikely to implicate the witness, so there will be no sworn confession to prove against him, whilst the Crown will be unlikely to be able to prove beyond all reasonable doubt that the sworn evidence is untrue and at worst he might be prosecuted for having given false information to the police and thereby wasted their time. In the present case the immunities given were not complete, in that they protected the witnesses against possible prosecution under the Ordinance or for conspiracy but not, inter alia, against civil proceedings. So, it is said, there was greater pressure to repeat in the witness-box the same story which they had asserted to be the truth, even though it was not the truth: if they told a different story in the witness-box, even though that story was true, the Crown might well be disposed to launch a civil action based upon the witness's prior admission of the receipt of corrupt moneys - and do so successfully - although the witness had not first been successfully prosecuted to conviction for perjury. As I understand it, the root of the danger where there is a partial immunity not covering civil claims is said to be that, once the witnesses had decided to give evidence, they had necessarily to admit their part in the crime committed. Having thus admitted receipt of money they had an interest in showing that most of it had been paid out to others and that that might lead them to implicate others falsely. Moreover, the more senior the recipient named the more likely would the Crown be to grant immunity. Did the witnesses really have such an interest? The principle of Reading v The Attorney General 1951 A.C. 507 does not depend upon the continued retention of the money but upon the original receipt of the money. The only benefit in giving false evidence about payments would be that the Crown might be less zealous in searching for available assets on which to execute, in the belief that the moneys had passed to the Defendants. Nevertheless the financial standing of a person against whom civil proceedings are proposed is always a material consideration in deciding whether to launch the suit, and the witnesses would know that. 3. Where a tainted witness is called there is always a double danger: first, that he may have lied to the executive authorities for his own purposes and, secondly, that he may have repeated that as evidence in the witness-box to avoid the inevitable accusation that one of two inconsistent stories must be untrue even if the original purposes he was seeking to serve were no longer significant to him. Those general dangers were fully appreciated by the learned judge. The question is whether he thought the granting of a partial immunity did in some way lessen the second danger rather than increase it. The sentence complained of clearly suggests that he did. That sentence must be read in the context of the judgment as a whole and it does relate to immunities generally, but we are here concerned with partial immunities. I appreciate that the judge expressly said he was alert to the danger that a payer might falsely accuse someone in order to acquire an immunity, but that was one of the "own purposes" which were the basis of what I have called "the first danger". Was the judge equally alert to the second danger? There is but one short sentence in the whole of a long judgment which casts doubt upon it but there is nothing at all to dispel that doubt despite this experienced judge's assertion that he had no illusion about the witnesses: that might relate only to the fact that the witnesses were accomplices. The entire evidence against these Appellants was of such a questionable character that, in my judgment, it was vital there should be no doubt whatever that the learned judge appreciated the full extent of the dangers in accepting it. It may well be that he did but no possible explanation of the offending sentence consistent with such an appreciation has been suggested to us and for my part I would have felt constrained to allow the appeals on this ground. 25th July, 1978. Representation: |