Yeung Yee-man and Another v. The Queen
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CACC001316/1976
Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 29 March, 1977. ----------------- JUDGMENT ----------------- 1. The appellants were found guilty of manufacturing a dangerous drug contrary to section 6(1)(a) of the Dangerous Drugs Ordinance. The first appellant was sentenced to nine years' imprisonment and the second appellant to six years' imprisonment. The appellants appealed against their conviction and sentence. 2. The facts of this case are simple. Early in the morning of April 7th, 1976 a party of police from the Narcotics Bureau carried out a raid on a chicken and pig farm at San Tin in the New Territories. The farm consists of a number of huts and other buildings used for the rearing of pigs and chickens. During the search of the farm the police noticed three persons leave one of the huts and run away from the farm. They were chased and two were caught. They are the two appellants. They were promptly arrested. 3. In one of the sheds on the farm the police discovered that it was being used for the manufacture of heroin. The shed contained all the necessary equipment for making heroin. The lights were still on and a quantity of heroin was being heated over kerosene stoves. It was quite obvious that the police had interrupted the actual manufacturing process. In addition, there was over two kilogrammes of heroin in the shed. 4. The appellants were found to have traces of heroin on their bodies and in their clothes. 5. The Crown relied on the presumption contained in section 45 of the Dangerous Drugs Ordinance. This reads as follows:-
6. There is no doubt that the farm was, in the words of the section "premises" in which a dangerous drug was being manufactured. Equally, there is no doubt that the appellants were found escaping from such premises. And that the presumption contained in the section applied. 7. The presumption is that the appellants were presumed to have been manufacturing a dangerous drug. But in order to succeed the Crown must prove that the appellants knew that what was being manufactured was in fact a dangerous drug. The knowledge or mens rea of the appellants, which is an essential ingredient of the offence of manufacturing a dangerous drug must be proved independently of the presumption. 8. Section 45 does not contain a presumption that the appellants knew that they were manufacturing a dangerous drug it is merely a presumption that they were manufacturing. It goes no further than that. And as I have said, in order to secure a conviction there must be evidence apart from any presumption that the appellants had such knowledge. 9. In his summing-up to the jury the learned judge used expressions which could be read so as to suggest that where the presumption applied it included a presumption that the person found escaping is to be presumed not only to have been manufacturing a dangerous drug but also to have had the knowledge of that fact. 10. So far as the first appellant is concerned there was ample evidence which, if believed, clearly proved that he had knowledge of what was being manufactured at the time. We think that a jury would undoubtedly have convicted him had they been properly directed. We therefore applied the proviso and dismissed his appeal. The sentence of nine years' imprisonment is a proper sentence for this offence and his appeal against sentence was also dismissed. 11. The jury unanimously convicted the first appellant but convicted the second appellant by a majority of 5 to 2. The remarks made above concerning the summing-up apply equally in this case of the second appellant. But there was another matter. The judge referred to a mask which was found on the shirt worn by the second appellant that morning which he threw away as he was escaping from the premises. This mask was impregnated with heroin but there was no evidence that it had ever been worn by the second appellant. The learned judge in his summing-up referred to this piece of evidence more than once and he told the jury that in his opinion it was important as showing the intention or the state of mind of the second appellant. It clearly, with respect, does nothing of the kind. It does not impute knowledge that a dangerous drug was being manufactured, since there was no proof that the second appellant had made any use of it. Curiously enough the matter was never put to the second appellant when he gave evidence on his own behalf. He was asked no questions at all about the mask. 12. This appellant gave evidence on his own behalf and gave an explanation which was not wholly incredible. For all of these reasons, we think that this is not a case where it would be proper to apply the proviso. We consider the conviction is unsafe and unsatisfactory. The appeal of the second appellant is therefore allowed.
Representation: Downey (D.L.A.) for both appellants Conway for crown |