Case Detail

CACC001437A/1983

IN THE COURT OF APPEAL

1983 No. 1437

(Criminal)

BETWEEN

	THE QUEEN
	and
	LO KWONG-HING

-----------

Coram: Hon. Yang, Silke & Barker, JJ.A.

Date of hearing: 10th October, 1984.

Date of judgment: 10th October, 1984.

___________

JUDGMENT

___________

Yang, J.A.:

1. We are in this case concerned only with the Judge's direction to the jury on the presumption concerning manufacture of dangerous drugs under Section 45(1) of the Dangerous Drugs Ordinance.

2. In the summing-up the Judge said this:

"	The third presumption is this - the one that Mr. Bell has told you about - is that where people are found in premises in which a dangerous drug was being manufactured or equipment referable to the manufacturing of dangerous drug is found, such a person or persons shall, until the contrary is proved, be presumed to have been manufacturing or doing an act preparatory to manufacture.
	Of course it is the Crown's case here that there is no question of doing an act preparatory to manufacturing, the manufacturing had been completed. The presumption is, therefore, that if a person is found in premises in which equipment referable to manufacturing dangerous drugs are found, the presumption is that he was manufacturing."

3. The facts of this case are relatively simple. On the 3rd January 1983 the Applicant was seen emerging from an apartment at Sai Yee Street. The police upon entering the premises found paraphernalia which indicated that manufacturing had been going on. There were pots and pans, and measuring appliances, some of these items having stains of dangerous drugs on them. The question is whether a presumption arises so that this Applicant could be found guilty of manufacturing.

4. The summing-up was delivered in November 1983 when obviously the Judge had in mind the case of LAW Chih-leung, Criminal Appeal 612 of 1983. Subsequent to that case, in the Chief Justice's judgment in WONG Chun-ping, Criminal Appeal 493 of 1983 delivered in April 1984, it was settled that the law should be as that stated in an earlier case, the case of YU (1983) H.K.L.R. 7. In the light of YU and WONG Chun-ping, it is quite clear that the Judge's direction to the jury on that presumption cannot now stand.

5. Counsel for the Crown argued that there was overwhelming evidence to show that the Applicant was manufacturing drugs and therefore there was no need to rely on the presumption under Section 45. We are of the view that if the Judge misdirected the jury, though the misdirection in the circumstances was perfectly understandable in the then state of the authorities, we could not apply the proviso, and there are a number of authorities to support this view.

6. Crown Counsel then argued that we could apply Section 51(2) of the Criminal Procedure Ordinance and return an alternative verdict upon the evidence before the jury. Crown Counsel might well be right that this is a course that is open to a Court of Appeal but we propose to say nothing more on this section in view of a number of cases which are pending before another division. Suffice it for us to say that the Judge in his summing-up to the jury quite clearly removed from them the possibility of a verdict of guilty on an act preparatory and therefore the jury was never required to consider that alternative. In the circumstances we do not think that it would be right for us to consider something which the jury was never asked to consider. There is, as Crown Counsel quite rightly said, something artificial about the situation which has arisen because of the state of the law before April 1984, but we are content to follow the decision in the case of WONG and therefore must allow the application, treat the application as an appeal and allow the appeal. The conviction is accordingly quashed and the sentence is set aside.

T.L. Yang

Justice of Appeal

Representation:

Mr. O.R. Mayne, Q.C. and Mr. R. Woo (Wing-sum Lo & Co. ) for Applicant.

Mr. McNamara, Crown Counsel for Respondent.

CACC001437/1983

IN THE COURT OF APPEAL	1983, No, 1437
	(Criminal)

BETWEEN

	The Queen
	and
	1. WAN Kwong-sun
	2. WONG Nam-yau
	3. LO Kwong-hing

_____________

Coram: Sir Alan Huggins, V.- P., Li & Yang, JJ.A.

Date of Judgment: 22nd August, 1984

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This judgment relates solely to the 4th Defendant, who was one of seven men charged with various offences under the Dangerous Drugs Ordinance. He alone was charged in the 2nd count of the indictment with possession of dangerous drugs for the purpose of unlawful trafficking and he was convicted after a trial before a judge and jury.

2. Part of the evidence against the 4th Defendant was a statement which he made to a Senior Customs Officer after his arrest and the only points taken on the appeal arise out of the admission of this statement in evidence after a trial within the trial. It is said first that on the evidence the judge was wrong to rule that the statement was admissible and, secondly, that in any event the judge should have excluded the statement on the ground that it was obtained in circumstances amounting to oppression.

3. The 4th Defendant was arrested at 16.55 on 3rd January 1983. The statement started at 21.10 and was concluded at 01.15 on the 4th. It began with a caution and there followed 42 questions, each of which was written down by the officer and read over, to the 4th Defendant, who then gave his answer. The answers were written down by the officer and, after each page had been read over, the 4th Defendant signed each answer individually. The effect of the statement was that the 4th Defendant did not know what was in the packet which was found on him, but he did admit possession of the packet and gave an explanation of how he came to be in possession.

4. At the trial the 4th Defendant alleged that the entire statement was fabricated by the officer, but this allegation was rejected by the judge and has not been pursued before us. Complaint was also made that the officer had interrogated the 4th Defendant after deciding to charge him and that the interrogation took the form of an oppressive cross-examination. The judge expressed himself to be satisfied that the officer had decided to charge him, but Mr. Jackson (for the Crown) has contended before us that there was no evidence whatsoever upon which that finding could be founded. On the other hand, the judge accepted a denial by the officer that the 4th Defendant had been refused any form of refreshment from the moment of his arrest until the completion of the statement.

5. It has not been suggested on behalf of the Applicant that there was any direct evidence that the officer had decided to charge the 4th Defendant before the statement began, but as I understand him, Mr. Dinan says that the judge was entitled to infer from all the circumstances that he had done so. In the first place counsel points out that the officer clearly had sufficient evidence on which he could charge the 4th Defendant, since there was a presumption of knowledge and the burden was on him to rebut it. Then counsel said that most of the questions put to the 4th Defendant were designed to produce answers which merely confirmed information the investigating officers already had and that they were certainly not confined to giving the 4th Defendant an opportunity to explain how he could rebut the presumption. That they were so designed, it was submitted, appeared from the repetitious nature of the questions and in particular from the fact that no less than three of them related to establishing affirmatively the Applicant's knowledge of the contents of the packet, which they could not otherwise have done. For the legal implications of these circumstances Mr. Dinan relied upon Reg. v. LAI Kin-ming Crim. App. 1983 No. 380 where prima facie the facts bore a close resemblance to those of the present case. However, there the court stated that the officer had himself virtually admitted that his purpose at his interview with the Defendant "was to obtain by a process of question and-answer from the lips of the applicant himself confirmation of the abundant evidence he already had in his possession associating him with the drugs found within the premises". As in the present case, the interview occupied a very long period of time, but it appeared that the actual taking of the statement took only some 40 minutes, which left the Court of Appeal asking itself what had happened during the rest of the time. The court concluded that "the entire procedure involved an impropriety of an oppressive character" and "fell foul ... also of the general principle that a man is not to be induced to condemn himself out of his own mouth". In our case there was no such admission: the officer said the purpose of the interview was "to make inquiries of him as to the reason for his carrying that packet in his right hand at the time when he alighted from the car". We are not persuaded that the only reasonable inference from all the circumstances is that the officer's intention was to obtain admissions. The 4th Defendant had been arrested because he had been found to be carrying dangerous drugs. Although, by reason of the presumption under s. 45, there was evidence upon which he might be convicted, it does not follow that it was necessarily proper to charge him on the strength of that evidence. The presumption under that section was rebuttable and it would have been wrong that he should be charged until he had been given a full opportunity to explain his apparent connection with the drugs. Counsel argues that the questioning went beyond asking the Applicant for an explanation on that point and says that the effect of the taking of the statement was that the prosecution was able to rely upon inconsistencies between the answers recorded therein and the 4th Defendant's answers in the witness box, inconsistencies to which the judge referred more than once in his summing up. However, those inconsistencies occurred in his explanation of his reasons for carrying the packet in which the drugs were found and not in relation to some peripheral matter. This was not a case where interrogation took place in the first instance without a caution: the 4th Defendant was clearly told that he did not have to answer any of the questions put to him. There is nothing to show that the interrogation was conducted in an aggressive manner. The explanation which the 4th Defendant gave did not lead the officer to believe that the presumption of knowledge could be rebutted and, at the end of the statement, he informed the 4th Defendant that there was reason to believe that he had committed the offence with which he was eventually charged. The officer then again cautioned the 4th Defendant. The repetition of the caution may have been a mere formality which was of no conssquence, but it is clear that up to this point there was a possibility (however remote) that the 4th Defendant would not be charged. Thereafter he was asked only whether he had anything to ,say, and he repeated the exculpatory part of what he had previously said.

6. The intial question which the judge had to ask himself was whether the statement was voluntary and the second question was whether he ought, in the exercise of his discretion, to exclude an admissible statement on the ground that it had been obtained in a manner which was oppressive. In his ruling he appears to have taken these questions in the reverse order, but nothing turns upon that. In our view there was evidence upon which he could properly find that the statement was voluntary. We would interfere with his exercise of his discretion only in a clear case, and we are not persuaded that he was wrong.

7. The application is dismissed.

22nd August, 1984.

Representation:

THE QUEEN v. LO KWON-HING

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