R. v. Wong Wai Hing

CACC000283/1995

IN THE COURT OF APPEAL

1995, No.283
(Criminal)

----------------

Coram: Hon Mortimer, J.A., Bewley and Sears, JJ. in Court

Date of hearing: 1 December 1995

Date of judgment: 1 December 1995

-------------------------

J U D G M E N T

-------------------------

Bewley, J. (Giving the judgment of the Court):

1. The applicant was convicted of trafficking in a dangerous drug by Deputy Judge Candy in the District Court.

2. He was stopped by two police officers in Sau Mau Ping Estate. Five packets containing 131.93 grammes of a mixture containing 18.25 grammes of heroin hydrochloride were found in his possession. That was admitted. It was also an admitted fact that the retail value of these drugs was $22,991.

3. The applicant gave evidence. He said he earned $9,000 per month as a garment worker : in cross-examination he said that figure might be too high as he was a casual worker. He also earned $7,000 per month as a fruit hawker. On average he spent $9,000 per month on heroin. The only other expenses he mentioned were for cigarettes and travelling : presumably he also ate occasionally. He had no savings at the end of the month.

4. On the day in question the applicant intended to buy two ounces of heroin. However his regular supplier told him he had five ounces of inferior quality heroin for sale at a cheaper price. The applicant usually bought in quantity to reduce the risk of arrest that frequent purchases entailed.

5. The applicant said he had borrowed $10,000 from his sister, who did not give evidence, which was the price he paid for these drugs, purchased five minutes before his arrest. It was also an admitted fact that the purity of the seized drugs was almost 50% less than the average. The applicant was lightly cross-examined.

6. In his very brief Reasons for Verdict the judge below made findings which we are reluctantly compelled to criticise. The first was that, having regard to his evidence as to his income, the applicant would not have needed to borrow the money to buy the heroin and the judge did not therefore believe that he had done so.

7. The judge's only other finding was the double-barrelled one that he did not believe the applicant had bought the entire quantity for his own consumption and that a good portion of it was intended for supply to others.

8. The difficulty with this approach is that it is far from clear how the judge arrived at his conclusion. What inferences did he draw from the evidence? He does not say that he believed the applicant's evidence as to his income and expenditure. That was the vital evidence. It was open to him to disbelieve it. In that case the applicant would have needed the loan and that evidence would have been crucial. Otherwise it was not.

9. But, if the judge did believe it, the applicant might have been able to afford the drugs in question. In that case he should not have been disbelieved when he said they were for his own consumption. If he disbelieved the applicant about his means, the judge should have said so.

10. For these reasons we granted the application, treated it as the appeal, allowed the appeal and quashed the conviction, substituting therefor a conviction for possession of dangerous drugs, contrary to s.8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

11. The applicant having been in custody for almost a year, we ordered that the sentence should be reduced to such term as would allow his immediate release.

12. In conclusion we would observe that, where such issues are raised, it is incumbent on the trial judge to set out his findings, and the inferences drawn therefrom, with more care and precision than was done in this case.

Representation:

Mr Wayne Walsh, S.C.C., for Crown/Respondent

Mr Philip Dykes, assigned by D.L.A., for Applicant