Lo Man Sun v. The Queen

CACC000245/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 245 OF 1973

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Coram: Huggins, J.

Date of Judgment: 4th May 1973.

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JUDGMENT

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1. This Appellant and another man were charged with possession of dangerous drugs for the purpose of unlawful trafficking and with possession of an instrument fit and intended for the injection of dangerous drugs. This Appellant was convicted on both charges and was sentenced to three years' imprisonment on the first count and six months' imprisonment concurrent on the second count. There is in the record before me a sheet which is headed "Amended Charges" but it does not appear at what stage, if at all, the charges were amended: that sheet is not dated and the learned magistrate in his note has not indicated any amendment. However, upon this appeal nothing turns upon the precise wording of the charges.

2. The Appellant originally appealed against sentence only but when he appeared before the court he indicated that his mitigation was that although he was in unlawful possession of the drugs it was for his own consumption and not for the purpose of trafficking. In those circumstances it appeared to me proper that this appeal should be treated as an appeal both against conviction and sentence. Although the learned magistrate had submitted a Statement of Findings which dealt very fully with all the evidence, I thought it right to adjourn and to give him notice of the appeal against conviction in case he saw fit to add anything. He has indicated that he does not wish to do so.

3. The evidence was that at one o'clock in the morning two police officers went to the roof top of a building in Kwong Ming Street, Wanchai. There was a number of huts on that roof top and in one of them the officers saw the two Defendants. They were standing in front of a television set and this Appellant was holding in his right hand a red tooth paste cap and was in the act of lifting something which the officer took to be dangerous drugs in the cap. The men were arrested and it was then discovered that there were various exhibits on the top of the television set, including ten packets of what were later discovered to be dangerous drugs. There were 4.9 grammes of salts of esters of morphine and 2.2 grammes of barbitone and a plastic cap containing less than 0.1 gramme of salts of esters of morphine. Nearby was found a roll of brown paper. The brown paper was of a kind similar to some small pieces of brown paper found on top of the television set with the drugs. The Appellant was searched and on his person were found a sum of $865.95 in Hong Kong currency and $2 in United States currency. Also on his person were some keys, one of which fitted a lock which was used to lock the front door of the hut.

4. It is not now disputed that the Appellant was in possession of the drugs and the only real issue is whether or not the magistrate was entitled to find that the Appellant was in possession of the drugs for the purpose of unlawful trafficking. The Appellant's case was that he bought them for his own consumption. He said that he shared this hut with the other man who was arrested and that they both formerly shared the hut with a man called CHAN Yiu, who died last year. When cross-examined he said that he had heard that several packets of drugs were found at the premises and that they belonged to the late CHAN Yiu: he had no idea where they were found. That, of course, was in conflict with the case he now advances - that he bought drugs for his own consumption. He denied that he was using the tooth paste tube cap to measure out the drugs into the small pieces of paper. His explanation of the large sum of money in Hong Kong currency was not accepted by the learned magistrate and he explained the US$2 simply by saying that he had bought them. In his Statement of Findings and Reasons, the learned magistrate said:

"This case did not appear to me to be a case of a person being charged with the more serious offence of trafficking simply because he had in his possession more than 0.5 gms. and therefore the presumption applied. From the evidence I had heard I was satisfied that the Appellant was actually trafficking in Dangerous Drugs."

At the previous hearing it was submitted that the learned magistrate relied upon the presumption and reading the first sentence of that passage, one might conclude that that is a possible conclusion. Nevertheless, reading the passage as a whole, I incline to the view that the learned magistrate did not rely upon the presumption and the first question, therefore, is whether the evidence which I have related was sufficient to indicate that the Appellant was dealing with these drugs otherwise than for his own use. As I said in Reg. v. WONG Yin-yiu 1972 H.K.L.R. 6, it is not necessary that there should be a commercial dealing in order to create a trafficking, though the submission here is, of course, that the Appellant was obviously preparing these drugs for sale and that the money which was found on him indicated that he had been involved in trafficking previously and it was his intention to continue trafficking with these particular drugs. In my view that was a conclusion which the learned magistrate was entitled to reach. Even if that were wrong then the presumption would still apply and, as it is manifest that the learned judge rejected the story told by the Appellant, the conviction would still be supportable. Therefore there is no ground upon which I can interfere with the conviction and, on that basis, the sentence of three years' imprisonment was fully justified. This Appellant has a very long record indeed of drugs offences - dating back to 1949. He has well over thirty previous convictions.

5. This appeal is dismissed.

4th May 1973

Representation: