Lee Sik Cheung And Others v The Queen

Judgment Cited in Precedent Map Related
Judgment Date13 October 1966
Year1966
Judgement NumberCACC311/1965
CourtCourt of Appeal (Hong Kong)
CACC000311/1965 LEE SIK CHEUNG AND OTHERS v. THE QUEEN

CACC000311/1965

CRIMINAL APPEAL NO. 311 OF 1965

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BETWEEN
1. LEE Sik Cheung

Appellants
2. KWOK Kam Hung
3. HUNG Wa Sze
4. LAM Chuk Ming

AND
THE QUEEN Respondent

Coram: Hogan, C.J., Rigby, S.P.J., and Scholes, J.

Date of Judgment: 13 October 1966

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JUDGMENT

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1. The facts of this case have been set out when dealing with the appeals of the 3rd and 4th appellants; it is unnecessary to repeat them. The first appellant LEE Sik Cheung has appealed against his conviction for importing dangerous drugs and being in possession of dangerous drugs. It will be convenient to deal first with the second of these charges.

2. Counsel for this appellant has argued two grounds of appeal in connection with this charge:-

(1) the jury was not directed that the time at which, according to this appellant, he was told by Tsang Choi that there were dangerous drugs in the cargo of bamboo, was relevant and material to the determination of his knowledge and possession of the dangerous drugs; and
(2) the judge failed to give an adequate direction to the jury on the onus of proof in respect of the charge of possession.

3. We do not think that the primary complaint raised in the first ground can be sustained as the jury had before them the appellant's statements to the police in which he claimed that his knowledge of the drugs was derived from Tsang Choi at a late stage and, in the judge's summing-up, reference was made to these statements at length so that the jury was fully aware of the appellant's contention that he was unaware of the presence of the drugs until after he had delivered them to the farm; no further direction by the judge as to the significance of this contention was really necessary, though it would not have been out of place; but this ground does raise by implication, wider issues of some difficulty on the judge's direction.

4. When dealing with the onus of proof, in his direction on this charge, the judge said:-

" ..... there was evidence that this bill of lading (referring to 1,000 bundles of bamboo) was in the the hands of, under the control of the 1st accused at that time.".
and he went on to say
" Now the purpose of that is this. You have heard said before that the burden of proof in a criminal case is on the, lies on the Crown. That is to say the prosecution has to make out its case. The defence does not have to excuse itself. But that is sometimes altered by statute. It has been altered so far as it concerns this particular charge.
When dealing with the first charge I pointed out to you that there was an absolute prohibition imposed by statute on the importing of dangerous drugs. Similarly, in the charge of possession there is a section of the Dangerous Drugs Ordinance which I will have to read to you. It says in effect, I am paraphrasing it: Any person who is proved to have in his possession or under his control any document, (such as a bill of lading,) relating to anything whatsoever containing any dangerous drugs shall, until the contrary is proved, be deemed to have been in possession of such a drug and shall, until the contrary is proved, be deemed to have known the nature of such drug. If you have a bill of lading, therefore, referring to a suitcase of, shall we say, clothes, and that suitcase contains also dangerous drugs, the law presumes that you know that those drugs are there and that you know they are drugs, but it is open to you to prove that you did not have such knowledge and that you did not know that they were there. If you can prove that, then the case cannot be proved against you. This is a question of the burden of proof being shifted from the Crown on to the shoulders of the accused so far as this charge of possession of dangerous drugs is concerned. The Crown has to prove in a normal case, has to prove that their case is true beyond all reasonable doubt. But it is not for the defence when setting up a defence under this section to prove "beyond all reasonable doubt". If you think that the probability is that he did not know there were drugs there and did not know that they were dangerous drugs, then you cannot find him guilty.".

The judge then referred to the statement of the accused and ended by saying:-

"Now the 1st accused has said nothing more, and so there the case remains. If you think that what he said suggests a reasonable probability that he did not know that there were any drugs there, that he did not know that there were drugs there at all, then you should acquit him of the possession of dangerous drugs. If on the other hand you think that he either knew there were drugs there, or has not convinced you that he did not know they were there, then you should find him guilty...

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