THE QUEEN v. WONG KIM WAI

IN THE COURT OF APPEAL

1987, No. 263

(Criminal)

BETWEEN

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J U D G M E N T

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Power, J.A:

1.    The applicant faced a charge that on 20th January 1987 at Flat A, 3rd floor, 66-68 Hop Yick Road, Yuen Long, New Territories, Hong Kong, he did an act preparatory to or for the purpose of manufacturing a dangerous drug, to wit, salts of esters of morphine or any other drug, by storing items referable to the manufacture of dangerous drugs in the said premises, otherwise than under a licence granted by the Director of Medical and Health Services. He pleaded not guilty to that charge and was, after trial before Addison, J. and a jury, unanimously found guilty and was sentenced upon conviction to imprisonment for eight years. He now appeals both against conviction and sentence.

2.    The first ground of appeal argued before this court by Mr. Percy, who also appeared at the trial, complains of the particulars in the indictment.  It is suggested that the indictment was misleading and wrong by referring "to morphine or any other drug" and by using the words "by storing items referable to the manufacture of dangerous drugs".

3.    This ground must be looked at against the background of the evidence. The Government Chemist gave evidence and a Government Chemist's Certificate was tendered. Mr. Percy conceded before this court that there was evidence sufficient for the Government Chemist to reach the conclusion that she did, which was that the chemicals and equipment found on the premises were item's which could be used for the manufacture of No.3 heroin.

4.    The indictment was, in our view, not as happily worded as it might have been but there can have been no doubt that the Crown was alleging that the equipment was stored for the purpose of manufacturing salts of esters of morphine and the evidence produced by the Crown was clearly capable of proving that allegation. We find nothing in the further suggestion of Mr. Percy that "a dangerous drug" should have been used instead of the words "dangerous drugs" as it seems to us that the meaning of both terms is the same and that this is really a distinction without difference.

5.    There is also a complaint under this first head that evidence was improperly led as to the existence of a trace of opium in one of the bags. The Crown argues that, given the nature of the charge, this was admissible evidence and it seems to us there is much force in that argument.  However that may be it was of no materiality in the trial, as it was the defence of the applicant that he had no knowledge of what any of the bags contained, and can have in no way prejudiced his defence.  We find nothing of merit in the first ground of appeal.

6.    The second ground of appeal was that the learned trial judge was wrong to direct the jury that, in relation to the presumptions, the applicant had the task of displacing them in relation to “dangerous drugs” rather than “a dangerous drug” or “such drug”.  I do not need to deal further with this matter as I have already indicated that, in our view, this is a distinction without a difference.  We find no substance in this ground.

7.    The third ground of appeal was that the learned trial judge was wrong to repeatedly direct the jury that the applicant, in order to displace the presumptions, must show on the balance of probability that he was “unaware” that the items were referable to the manufacture of dangerous drugs as opposed to directing, in terms of s.45(2)(1) that the applicant did not “know” that the items were referable to the manufacture of dangerous drugs.  To understand this ground one must look at the Summing-up itself. At p.12 of the Summing-up the trial judge gave his initial direction both as to the application and to that displacement of the presumption. He said:

“In other words, its’s open to him to displace that presumption, and to do that he must show on the balance of probability that he didn’t know of the presence of the equipment or material inside his flat, or that if he did know they were there that he did not know they were referable to the manufacture of dangerous drugs.  That really is his defence, members of the jury.”

The trial judge there made plain how the presumption could be displaced and that the real defence lay in an endeavour to displace it.  It is true that he went on, at p.13 and p.14, to use the term “aware” or ”unaware” instead of the term “did not know”.  We find no real significance in this. When the direction is read as a whole we are satisfied that the jury can have been in no doubt what s.45(2) required them to look for when examining the evidence to see whether the presumption had been displaced.

8.    I turn now to the fourth ground which was that the trial judge was wrong to have had admitted in evidence Ex. 37 the Government Chemist’s Report of Dr. Choi when she herself was called to give evidence.  The argument in this regard relies upon s.22 of the Evidence Ordinance and suggests that this section, which refers to the admission in criminal proceedings of statements in documents when the maker is not being called, has application to a Government Chemist’s Certificate the admissibility of which is specifically dealt with under s.25 of the Ordinance.  We are unable to agree that s.22 has any such application.  The admissibility of the Government Chemist’s Certificate is governed by s.25.  It could certainly be objected to upon the ground that it was irrelevant, i.e. that it contained material that had no reference to the offence.  However if that objection is not taken or is taken and rejected then the court is bound to accept the Government Chemist’s Certificate as being prima facie evidence of the matters it contains.  If there is no evidence to contradict it it becomes conclusive evidence of those matters contained therein.  We are unable to see that there was Certificate when the Government Chemist herself was called to give evidence.

9.    This ground of appeal goes on to say that the admission of the Government Chemist’s Report referring to matters which were inadmissible had the effect of placing overdue emphasis and importance in the mind of the jury on the expert evidence and opinions which were vital to the Crown’s case.  The Government Chemist’s Report did make reference to the trace of opium but I have already dealt with that matter.  The suggestion that it placed overdue importance and emphasis on the expert evidence is difficult to understand. It was, unless contradicted, conclusive evidence.  It is conceded that Dr. Choi did not withdraw from her findings contained in the certificate and did not, in any way, contradict its contents.  That being, so, it is difficult to understand how it can be suggested that there is anything of substance in this ground of appeal.

10.    The fifth ground of appeal was that when dealing with the important issue of the applicant’s knowledge of the nature of the white powder, the trial judge dealt with the issue unfairly and was wrong to have ailed to mention that D.P.C. 16038 who was the only officer who made a written note of what the applicant said on arrest had not recorded an alleged reference by him to “white powder” and was wrong not to have told the jury that the evidence of D.P.C. 5979 when telling the jury that his evidence supported the evidence of the inspector.  However, the jury had heard the evidence and it was for them to judge to what extent it gave support to the other evidence and we have no hesitation in holding this admission was in no way fatal to the Summing-up.

11.    Finally, it was said that the learned trial judge had failed to direct the jury on the important aspect of sympathy and prejudice and had failed to tell them that they must avoid speculation.  There is no formula to which they must avoid speculation.  There is no formula to which a trial judge must adhere when giving a summing-up.  Certainly some trial judges make remarks such as those that it is suggested the trial judges make remarks such as those that it is suggested the trial judge should have made in this case.  It is not however incumbent upon judges to do so in any case.  It is not however incumbent upon judges to do so in any case. When the summing-up is read as a whole it fairly placed the matters that were really in issue squarely before the jury and left them for the jury’s determination.  We are satisfied that the adequacy of the summing-up was not in any way vitiated by the failure to make the suggested remarks.

12.    The application to appeal against conviction is refused.

13.    I turn now to the application of appeal against sentence.

14.    Objection is taken of the fact that the trial judge when sentencing said to the applicant:

“You are a cog in machine and close to the manufacturing preparation of dangerous drugs for distribution to the public, for these reasons the sentence of this court is that you will go to prison for 8 years.”

It suggested that the trial judge was wrong to have approached the sentencing of the applicant on that basis.  It is true, as has urged by Mr. Percy, that there was no evidence that he was the owner of the equipment.  He was, however, in charge of that equipment and was so found by the verdict of the jury.  It is also true that there was no evidence of any manufacturing process for gain but his is not really material.  What the applicant was charged with and what he was found guilty of was, to use the words of the charge, “storing items referable to the manufacture of dangerous drugs”.   It is true also that there was no quantity of dangerous drugs found on the premises.  However, there was a large quantity of chemicals found which the Government Chemist said could be used for the manufacture of 10 kilos of No.3 heroin.

15.    Mr. Percy has drawn our attention to WONG Chun-ping (1) and has suggested that the range of sentence for actual manufacturing is form 7 to 14 years and that, as this sentence of 8 years falls within that range, the applicant has been dealt with as though he were an actual manufacturer.  We do not consider this to be so.  The applicant, being the person who was trusted to store the manufacturing equipment, was an essential part in the manufacturing process.  Such a person clearly must not only manufacturing process.  Such a person clearly must not only be someone who is not suspected by the authorities but must be someone who is wholly trusted by those who intend to carry out the manufacturing.  He is an essential cog in the machinery of manufacture and the trial judge was quite right to say so.

16.    We are satisfied, given the nature of the equipment and given the chemicals that were found, that the sentence of eight years was proper in the circumstances and the application to appeal against sentence is also refused.