Chu Wing Alias Chu Chee v. The Queen

CACC000251/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 251 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. The Appellant was found Guilty of possession of dangerous drugs for the purpose of unlawful trafficking. He was convicted and sentenced to two years' imprisonment. He appealed against that sentence.

2. As in the last case, when he appeared before me previously he said that he had bought the drugs for his own consumption but it appeared from the record that he had also said in his evidence that he had been sent on an errand to buy these drugs by three fokis. The ground of his mitigation was that he did not have the drugs in his possession for the purpose of trafficking. In those circumstances, I thought it right that the whole case should be reviewed, including the conviction, and I directed that notice of this be given to the learned magistrate. He has now submitted a further Statement of Findings. This contains a statement that it was pursuant to my order. I am sorry if anything conveyed to the learned magistrate indicated that I had ordered him to do anything: I had simply indicated that he should be informed, in case he should think it desirable for him to add anything to his Statement of Findings. I am grateful to him for the further statement which he has given. He now indicates that he believed the story told by the Appellant that he had been sent on an errand by three fokis and that they had given him the money.

3. My difficulties are not yet at an end because at the hearing today the Appellant has changed his story again. He no longer says that the drugs were for his own consumption and he no longer says that he was sent on an errand by three fokis: his latest story is that he was one of three men who agreed between them that from time to time they should all buy drugs but that each in turn should make the actual purchases so that of the drugs of which he was found in possession some were for his own consumption and some were not and that he himself was one of the so-called "three fokis" who had directed that he buy the drugs.

4. The learned magistrate took the view that if the Appellant was buying these drugs as the agent of three other men he was "dealing with" the drugs and was therefore in possession for the purpose of unlawful trafficking. It was that story, and not the latest story which has been told to me, which has been believed and which must form the basis of my decision. Although this was, therefore, not a commercial selling by the Appellant and although there was no indication that he was to make any profit from the transaction, I think the learned magistrate was right in saying that this was possession for the purpose of unlawful trafficking.

5. The sentence was one of two years' imprisonment, which is, perhaps, a heavier sentence than I would have passed, but the Appellant has a very long record of dangerous drugs offences. Out of twenty-six previous appearances before the courts twenty-two were in relation to dangerous drugs offences. The Appellant is a man of sixty-one years of age but the learned magistrate took that into account and said that he reduced the sentence which he would otherwise have passed by six months. The fact that the drugs were not for his own use would, of course, involve the fact that the Appellant was assisting other persons to wreck their lives with dangerous drugs and since this is the vital factor in the offence of trafficking it seems to me that the sentence which was passed was one with which I ought not to interfere.

6. The appeals against conviction and sentence must be dismissed.

4th May 1973.

Representation: