The Queen v. Yip Ching Yuen

HCMA000153/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 153 OF 1988

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BETWEEN

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Coram: The Hon. Bewley, J. in Court.

Date of hearing: 7th June, 1988.

Date of delivery of judgment: 7th June 1988.

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J U D G M E N T

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1. The appellant was convicted by Mr Wahab at Tsuen Man Magistrates Court of possession of 8.78 grammes of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134. He admitted possession for his own consumption and gave evidence in an attempt to rebut the presumption.

2. He said he earned $4,000 a month in the Cheung Hong Restaurant, which was not seriously challenged. He received free food and lodging at the restaurant. He sent between $500-$1,000 a month to his family in China.

3. The appellant said he bought the drugs for $200 from his usual supply source in Tai Wor Hau Estate. This was enough to last him for two days. He had been smoking heroin for seven years. On this evidence the appellant spent his whole disposable income on heroin.

4. In his Statement of Findings, the magistrate's only comment on the evidence was:-

"Whilst the Defendant was in the box, I gained the impression that he was trying to hide something from me. He appeared insouciant at times - I interpreted this as an attempt to coax me into thinking that he was really only guilty of the less serious offence of 'simple possession' (section 8(1) of the Ordinance)."

Presumably he meant that he did not believe the defendant. If so, he should have given his reasons. As O'Connor, J. said in R. v. Chong Kan-sau⁽¹⁾:-

"There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

5. This the magistrate has signally failed to do. Had he directed his mind to the following matters, he would, I think, have had little difficulty in finding that, on the balance of probability, the drugs were for the appellant's own consumption.

(1)     His ability to pay for such a quantity.

(2)     The fact that the drugs were in a single container.

(3)     The very small quantity of heroin in the mixture, requiring a larger dose.

(4)     His unchallenged^- history of addiction.

(5)    The absence of any evidence pointing the otherway.

6. For these reasons the appeal is allowed and a conviction for simple possession, contrary to section Fl(1) of the Ordinance, substituted. The sentence is reduced to nine months imprisonment, concurrent to the sentence now being served in respect of other offences.

(1) Mag. App. 859/85

Representation:

Mr. M. Wilson, Crown Counsel, for Respondent.

Miss Colette Van der Eb (assigned by D.L.A.) for Appellant.