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Yu Kwan v The Queen

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date06 March 1969
Year1969
Judgement NumberCACC785/1968
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000785/1968 YU KWAN v. THE QUEEN

CACC000785/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 785 OF 1968

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BETWEEN
YU KWAN Appellant
AND
THE QUEEN Respondent

Coram: Blair-Kerr, Mills-Owens & Huggins, JJ.

Date of Judgment: 6 March 1969

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JUDGMENT

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Huggins,J:

1. The appellant appeals against his conviction upon a charge of unlawful possession of "traces of diacetylmorphine hydrochloride". The facts found by the learned magistrate can be briefly stated. The appellant was seen smoking a cigarette in the street. He was walking in a peculiar manner which appears to have aroused the suspicions of a corporal of police. The corporal arrested the appellant and seized the cigarette. The cigarette was later sent to the Government Chemist, who has certified that he found traces of the drug.

2. An argument was addressed to us upon the wording of the chemist's certificate. The certificate reads:

" ...... I received personally from P.C. 5742 1 cigarette and in a sealed packet marked R.B. X15735 which I found to contain traces of diacetylmorphine hydrochloride ...... ."

It was contended that upon the grammatical and true construction of these words the magistrate was wrong in saying the chemist had certified there were traces of drugs in the cigarette: he had certified only that there were traces in the sealed packet and there was therefore nothing to connect the appellant with the possession of those traces. At best, counsel submitted, the certificate was equivocal and the appellant should be given the benefit of the doubt which must inevitably arise. The chemist has, in truth, departed from the form prescribed in the Second Schedule to the Dangerous Drugs Ordinance by stating part of the contents of the sealed packet at a point other than that intended by the Legislature. The statutory form says (in part):

"I received personally from (name or description of officer) .................. a sealed packed ......................... (or as the case may be) marked (if any special mark) .......................... which I found to contain (quantity and nature of drug)."

It will be seen, therefore, that the figure and words "1 cigarette end" have been inserted in the space intended for "the name or description of officer". However, if the form had been followed precisely it is arguable that the chemist need not have mentioned the cigarette end at all but merely have certified that the sealed packet contained traces of diacetylmorphine hydrochloride. It is a statutory form and its adoption cannot be challenged as insufficient. The Legislature obviously intended that it was reasonable to assume the police would not place a substance which they seized from an accused person into a packet which contained drugs from another source, otherwise a certificate in the statutory form could never suffice without evidence that the packet was previously devoid of drugs. In our view that is a reasonable assumption to make in the absence of some contra-indication and it follows that even upon counsel's construction of the certificate there was evidence which would have entitled the learned magistrate to find that the cigarette contained traces of diacetylmorphine hydrochloride. We are not, however, persuaded that that is the correct construction of the certificate. In any event, for reasons which will appear later, we thought it desirable to call the chemist for further examination and it is now beyond argument that the traces of the drug were in fact found in the cigarette.

3. The main point in the case is whether there is any minimum quantity of drugs which must be found in the possession of an accused person before he can be convicted under s.10 of the Dangerous Drugs Ordinance of unlawful possession. The occasion of the appeal has been the publication of the decision of the English Court of Appeal in Reg. v. Worsell in The Times Newspaper of 28th January 1969. That case has not been fully reported but we have had the advantage of receiving a copy of the transcript of the judgment from the Registrar of the Criminal Appeal Office. In that case the indictment was amended to allege that the appellant had unlawfully in his possession "a certain drug, to wit, a few droplets of diamorphine". The evidence was that the droplets were in a small tube. They were invisible to the naked eye, could only be discerned under a microscope and could not be measured or poured out. Lord Justice Salmon said:

"This court has come to the clear conclusion that inasmuch as this tube was in reality empty ...... that makes it impossible to hold that there was any evidence that this tube contained a drug. Whatever it contained, obviously it could not be used and could not be sold. There was nothing in reality in the tube."

The court added, however, that as the appellant had said to the police, when told his co-defendants had admitted taking drugs, that he himself had "had a fix", the presence of the tube, which clearly had held the drug used for the fix, would have been conclusive evidence against him of possession of a drug at some time prior to the moment when the police arrested him.

4. It is significant that under the English Regulations it is an absolute offence to be in possession of a dangerous drug without authority: Reg. v. Warner(2). The English court was therefore at pains to emphasise the need to show that the accused person was in truth in possession of a drug. If the quantity was so small that he could not take it or peddle it the grave social evil the legislation sought to remedy would not be reduced by a conviction and the Legislature could not have intended possession of such a small quantity to be an offence. In Hong Kong the offence created by s.10 of the...

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