Tsui Sheung And Others v The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL No. 705 of 1967

(Case No. 3 of November 1967 Sessions)

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JUDGMENT

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1. Despite the careful and persuasive arguments put forward by Mr. Shears on behalf of the first two appellants, we are satisfied that there is no substance in these applications for leave to appeal and they must be dismissed.

2. The three appellants were convicted of the manufacture and possession of dangerous drugs. The facts may be briefly stated. At about 2.30 p.m. on the 14th September, a party of police acting on information received, carried out a raid on the first floor flat premises at 53A Nga Tsin Wai Road, Kowloon. There are, in fact, two adjacent flats - Nos. 1A and 2A - the outer approach from the landing to both of them being barred by a grille door across the top of the stairs. Knocking at the grille door producing no immediate result, members of the police party forced open the door by the use of an iron bar. The police party then pushed open the front door of Flat 1A, which was apparently unlocked, and entered into the corridor. In the flat were the three appellants, the first and second in the sitting-room and the third appellant in the corridor. It was a small two-bedroom flat with sitting-room, kitchen and bath-room. With the exception of the sitting-room, in every other room, including the kitchen and bathroom and, indeed, in the corridor, was found a considerable quantity of the usual utensils and paraphernalia connected with the manufacture of dangerous drugs. A strong choking smell of chemicals was coming from the direction of the kitchen. In the kitchen cooking was going on of some form of chemical substance. In one of the bedrooms, inside a cupboard were 2 sieves containing a substance - subsequently found to be heroin - being heated over an electric hair dryer. It was abundantly clear that the premises were in fact used for the maufacture of herein on a not inconsiderable scale.

3. The three appellants were arrested. The defence put forward by all of them at their trial was that they were entirely innocent; they knew nothing about the dangerous drugs being manufactured on the premises; nor had they had any part in the possession or control of the dangerous drugs found there, and each one of them was there for an entirely innocent purpose; the first two being there to purchase some furniture from a person who was presumably the owner, or in occupation, of the flat; the third appellant, the woman, having gone there in order to apply for a job as an amah.

4. We do not find it necessary to deal at any length with the evidence against each of the appellants and it is sufficient to refer very briefly to such evidence and to the defence put forward by each of the appellants.

5. In so far as the first appellant was concerned, evidence was given at the trial that at the time of his arrest, he was seen, whilst in the sitting-room, to take a key ring out of his pocket. The key ring was taken from him; it contained 4 keys. Of these four keys, one was found to fit the lock of the iron grille door, the second key the lock of the inner front door to flat No. 1A, and the third key the inner front door to the adjoining flat No. 2A.

6. Evidence was also given that the water in which the first appellant was requested to rinse his hands, upon analysis by the Government Chemist, was found to contain traces of heroin. Mr. Choi, a rent collector, gave evidence identifying the first appellant as the person from whom he had, on two previous occasions, received the monthly rent of the flat. He had received such rent when it had been handed to him, by the first appellant, through the bars of the iron grille door. At an identification parade, he picked out the first appellant, whom he identified by the name of Cheng Tse Choi, being the name in which the rent receipts were in fact issued. Finally, when formally charged with the two separate charges of manufacturing dangerous drugs and possession of dangerous drugs the first appellant, whilst denying the first charge, in answer to the charge of possession, and after caution, wrote in his own handwriting the words "I admit guilty". In his defence, the first appellant vigorously denied that he had ever been in possession of the bunch of keys, three of which fitted the doors of the two flats. He admitted that he had seen a bunch of keys in the sitting-room but denied that he had ever been in possession of them or picked them up. The evidence of Mr. Choi as to his having allegedly seen him through the grille door at the flat on the two previous occasions, was strenuously denied. Cross-examination of the Government Chemist elicited the fact that when heroin is being manufactured in a flat the atmosphere may from time to time be full of heroin dust which could, or might, settle on the furniture, and anybody in the immediate vicinity when such manufacturing is going on could, or might, become contaminated by the presence of such dust on his person or clothing. As to the statement, the first appellant said that after he had been charged with manufacturing dangerous drugs and had denied that charge, he was told that he must give some "face" to the police officer charging him, and that in consequence he was induced or persuaded to admit possession of the dangerous drugs despite the fact that he was entirely innocent.

7. The evidence against the second appellant was, to some extent, of a similar character. At the time of his arrest, he was found to be wearing a singlet and pyjamas; his shirt and trousers being found hanging up in another part of the flat. It was the suggestion for the prosecution that he was so dressed the more easily to facilitate his work in the process of manufacturing the drugs. There was evidence that traces of heroin were found in the basin in which he had washed his hands at the request of the police, traces of heroin were found in clippings taken from his nails, and traces of heroin were found in his clothing. Evidence was given that upon his arrest at the flat, when cautioned, he himself wrote and signed in the police officer's notebook the following statement:-

"(You) have seen the truth of the matter. There is nothing (I) can say. (I) only ask for a lenient sentence. As I am a lifelong vegetarian (I) will die sooner or later."

Then after signing that statement, he wrote down and signed the further sentence:-

"(I) make dangerous drugs together with TSUI Sheung."

When charged the following day with the offence of manufacturing dangerous drags, and after being cautioned, he himself recorded the words:-

"There is nothing (I) can say now that (I) have knowingly broken the law. I pray the Judge to pass a light sentence, but I have two requests to make: (I) Eat vegetarian food while in prison; bread and rice porridge will do."

and finally, when charged with possession of drugs after being duly cautioned he himself recorded and signed the statement:-

"No need to say any more."

In an unsworn statement from the dock, the appellant explained the fact that he had taken off his shirt and trousers and was wearing only a singlet and pyjamas for this reason; he said that having agreed to purchase the furniture from the owner of the flat, he started to move it but was unable to do so by himself. The flat owner said that he was going out to get a meal and would send him some coolies and a lorry to assist him in the removal of the furniture and he agreed to this course. Whilst waiting for the coolies and lorry to arrive, he found that his clothes had become dusty as a result of handling the furniture and, since he was hot in consequence of his efforts, he took off his trousers and shirt in order to cool down until the arrival of the coolies and the lorry. He strenuously denied the statements tendered in evidence had been voluntarily made or that they were true and he contended that he had been forced to make them against his will. As to the third appellant, here again there was evidence that the water in which she was requested by the police, upon her arrest, to wash her hands was found to contain traces of heroin. Here again, Mr. Choi, the rent collector alleged that he had seen her...