Read the full judgment text of CACC 000178/1994 on BabelCite. This Court of Appeal judgment was delivered on 22 November 1994 before Yang CJ, Macdougall VP and Keith J.
Criminal law – dangerous drugs – trafficking – interpretation of 'procure' in s.2 Dangerous Drugs Ordinance (Cap.134) – whether purchase of a dangerous drug for personal consumption amounts to 'procuring' and therefore 'trafficking' – District Court Ordinance (Cap.336) s.84(a) – time limit for Attorney General's application for case stated – whether seven days run from acquittal or from final disposal including sentence – whether Court of Appeal has power to extend time under s.84(a). The respondent was intercepted by police in the early hours of 4 November 1993 and found with 27.34 grammes of salts of esters of morphine in plastic straws in his coat pocket. Under caution he admitted purchasing the drugs for his own consumption, buying in bulk because it was cheaper. He did not give evidence. He was tried on a charge of trafficking contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance; the trial judge acquitted him of trafficking but convicted him of simple possession under s.8 and sentenced him to two years' imprisonment. The Attorney General applied out of time to state a case. The respondent applied to dismiss or stay the appeal on the ground that the application was incompetent for non-compliance with the seven-day time limit in s.84(a) of the District Court Ordinance, submitting that time ran from the acquittal on 21 February 1994, not from sentence on 8 March 1994. The Attorney General contended that time ran only from the final disposal of the case, relying on the contrast with s.105 of the Magistrates Ordinance (Cap 227), which allows 14 days 'after the hearing and determination'. Held, the wording of s.84 is clear and unambiguous and time begins to run from the verdict or order of acquittal; the application was out of time (first issue, time limit). Held, three judges of the Court of Appeal are themselves judges of the Supreme Court and have power to extend time under s.84(a); an extension was granted in the exercise of discretion (second issue, power to extend). On the substantive question stated, held, the word 'procure' in the s.2 definition of 'trafficking' cannot be read without regard to its context; since possession simpliciter is a separate offence under s.8, possession for personal consumption cannot constitute trafficking. The legislature must have intended 'procure' to mean acquiring a dangerous drug for a purpose other than personal consumption, such as supplying it to another or manufacturing a variant. R. v. Mills [1963] 2 WLR 137 considered; Attorney General v. Lau Chi-sang [1987] HKLR 703 distinguished on the basis that import and export of dangerous drugs have international implications and affect the pool of drugs available for distribution (third issue, statutory interpretation of 'procure'). Respondent's application to stay or dismiss refused; extension of time granted; answer to the question in the case stated: 'no' – the trial judge did not err in law.
Legal issues: Time limit for Attorney General's application for case stated under s.84(a) District Court Ordinance · Power of Court of Appeal to extend time under s.84(a) District Court Ordinance · Whether purchase of drugs for personal consumption amounts to 'procuring' under s.2 Dangerous Drugs Ordinance
Outcome: Respondent's application to stay or dismiss the appeal by way of case stated refused; extension of time granted to the Attorney General. The Court of Appeal answered the question in the case stated 'no' – the trial judge did not err in law in holding that the purchase of drugs for personal consumption does not amount to 'procuring' within the meaning of section 2 of the Dangerous Drugs Ordinance. The conviction for simple possession under section 8, and the sentence of two years' imprisonment, stand.