The Queen v. Yeung Yeuk-hon

HCMA000713/1988

IN THE SUPREME COURT OF HONGKONG

(Appellate Jurisdiction)

MAGISTRACY^. CRIMINAL APPEAL NO. 713 OF 1988

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BETWEEN

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Coram: The Hon.Mr.Justice Barnes in Court

Date of Hearing: 7th October 1988

Date of Delivery of Judgment: 7th October 1988

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J U D G M E N T

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1. The Appellant was charged with two offences, one of possession of dangerous drugs for the purposes of unlawful trafficking and the other of possession of apparatus fit and intended for injecting dangerous drugs.

2. He pleaded guilty to the second charge and on the first charge admitted possession but denied that the purpose of his possession was unlawful trafficking. The case was then one which has become known in the magistracy as a "rebuttal case". As a result, the Defendant was the only witness to give evidence. In short he said that he was a drug addict and he had the drugs for his own consumption. He said that he was a construction site worker earning $6,000 a month and that he bought the drugs which he had in his possession for $1,000 saying that the quantity would last him about 15 days. He said it was also a cheaper method of buying the drugs and it was a less risky way of buying them for his own consumption.

3. The learned magistrate did not accept his evidence that all the drugs were for his own consumption and found that he failed to rebut the presumption and convicted him.

4. In his appeal against conviction, he relies on four grounds which have been argued on his behalf by Mr. Chan who appears for him today

5. The first ground is that the learned magistrate should not have rejected the Defendant's evidence as being thoroughly untrustworthy. Subsidary to that ground is the second in which it is contended that the magistrate by saying that the fact that the Appellant was a drug addict caused him to assess his credibility below that of an honest upright citizen showed that he had a prejudice against the Appellant even before he gave the bulk of his evidence.

6. In his Statement of Findings the learned magistrate referred to the fact that the Appellant had given evidence about his job and his earnings and that he was a drug addict

7. The magistrate then made the remark referred in the ground I have just quoted. Having done that the magistrate then went on to say that he only had "his bare word both as to his occupation and his earnings". What the learned magistrate meant was that the Appellant having admitted that he was a person in a category likely to be unreliable as a witness and that the bare word of such a witness where other reliable evidence should be readily available to support him if he is telling the truth ,makes it difficult to find a fact required to be proved on the balance of probabilities relying merely on that bare word.  This led the magistrate to go on to say "this suggested to me that he was being economical with the truth even over a matter so fundamental as his likelihood". That finding has been attacked on the basis:that there is no justification for it but I think the justication is what I have just said namely he was economical in that he did not bother to produce other evidence which he must have had available to him to substantiate his bare word if that bare word was the truth.

8. The learned magistrate noted that the Appellant as a witness "became very forgetful and evasive when pressed for the details of the actual purchase of the dangerous drugs". The magistrate formed the impression that he was evasive and eventually concluded that he was thoroughly untrustworthy. He had the benefit of seeing and hearing the Appellant and on that basis he was entitled to come to that conclusion .

9. The fourth ground is that the magistrate placed undue weight on the quantity of his dangerous drugs ,when the quantity is merely one of many factors to be looked at in deciding whether or not the presumption has been rebutted.

10. The learned magistrate examined this factor after having found that the Appellant was a thoroughly untrustworthy witness .He then went on to say that the quantity namely, 33 grams, was more than 13 time the amount which the legislature considers sufficient to raise the presumption that possession is for the purposes of unlawful trafficking .He said that the Appellant had in his possession "3 bags fuss of the stuff". He then went on to make the comparison between those bags and the single tiny packets which magistrates are accustomed to see when dealing with an addict who is in possession of drugs solely for the purposes of his own consumption .It was submitted that the magistrate did not give weight to the fact that the Appellant also had in his possession apparatus fit for the purpose of injecting dangerous drugs. The magistrate shows by his finding that he did pay regard to that factor because he said "clearly the Appellant possessed some of those drugs for his own consumption". He did, however, go on to say that on the balance of probabilities he could not find that all of the quantity in the Appellant's possession was for his own consumption.

11. It seems to me that the magistrate did properly and without prejudice weigh the evidence before him relevant to the purposes of deciding whether the presumption had been rebutted. The grounds put forward now on behalf of the Appellant do not warrant my interference with the decision.

12. I must, therefore, dismiss the appeal against conviction.

Representation:

Mr. H. Macleod, Sr. C.C. for Crown.

Mr. Kelvin Chan (D.L.A.) for appellant in respect of conviction.