R. v. CHEUNG WAI KWONG and Another

CACC000546/1994

IN THE COURT OF APPEAL

1994, No.546
(Criminal)

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BETWEEN
	THE QUEEN
	AND
	CHEUNG WAI-KWONG
	LAM KWOK-ON

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Coram: Hon. Power, Ag. C.J., Bokhary, J.A. and P. Chan, J.

Date of hearing: 5 May 1995

Date of judgment: 5 May 1995

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. Section 16 of the Criminal Procedure Ordinance provides that where an accused has been committed for trial by a magistrate, the judge may, after perusal of the documents and after hearing any representations which the accused and the Attorney General may wish to make, direct that the accused shall not be arraigned on the charge and that he shall be discharged. On 17th October 1994 Bewley J., pursuant to that section, ordered that today's respondents CHEUNG Wai-kwong and LAM Kwok-on, who had been committed for trial, be discharged. Upon committal an indictment dated 7th March had been filed alleging that they were involved in the manufacture of a dangerous drug. A second indictment, which it seems was filed in consequence of the application being made under s.16, dated 10th October 1994 was filed with an additional count of doing an act preparatory to or for the purpose of manufacturing a dangerous drug. Bewley J., having heard counsel, Mr. MacKay for the Attorney General on a fiat, and Mr. McCoy for the respondents, said at the conclusion of Mr. McCoy's final address:

"Yes I agree. The application succeeds. The defendants are discharged."

He made no findings. It is arguable that under r.7 of the Criminal Procedure Ordinance he was required to do so. Certainly we would have been assisted had we had the benefit of his findings. However that may be we have not, in the outcome, been hindered in our appreciation of the matter as the facts have been fully canvassed in the helpful written argument from Mr. Bruce who today appears for the Attorney General. The respondents are again represented by Mr. McCoy.

2. I do not intend to canvass the evidence at any length. It showed that on 9th October 1993 a police party under Inspector Ho Chi-kit went to Room 1024 Heng Sing House, Heng On Estate, Ma On Shan and, having arrived at about noon, kept those premises under observation for about two hours. The police party then decided to enter the premises. There was evidence of planned and determined obstruction which prevented entry for about 10 minutes. When the police party did finally gain entry, they found premises which contained throughout traces of dangerous drugs. They apprehended two men who had to be subdued and upon whose clothing were found extensive traces of dangerous drugs. They found a toilet bowl which upon examination proved also to bear traces of dangerous drugs. They found nearby a movable shower head with the water still running. Also found in the premises was an extensive range of paraphernalia connected with the manufacture of dangerous drugs. We mean no discourtesy to Mr. McCoy if we do not canvass his arguments at length but we think it sufficient to say that all of this evidence was such in our view as to be sufficient to establish a prima facie case, i.e. that it was evidence fit for the consideration of a jury both on the manufacturing count and on the second count. We add, however, that, as to the second count, we are satisfied that there was no warrant for including therein the words "did an act preparatory to or" and we direct that those words be deleted therefrom. We are satisfied then that the Attorney General's application must succeed. We quash the acquittals and order that the respondents be tried upon amended indictment.

3. There is no argument that the respondents are entitled to their costs of today's appearance under s.81D of the Criminal Procedure Ordinance and we so order.

4. We direct pursuant to Rule 6 of the Criminal Procedure (Appeal against Discharge) Rules that no person shall publish or broadcast a report of these proceedings.

Representation:

Mr. A.A. Bruce, S.A.C.P. (Crown Prosecutor) for the Crown/Appellant.

Mr. G.J.X. McCoy & Mr. Gibsen Shaw instructed by Messrs. Chong, Leung & Co. for Respondents.