THE QUEEN v. LO KWON-HING

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JUDGMENT

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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:

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.