R. v. Lee Shu Hung

CACC000326/1992

IN THE COURT OF APPEAL

1992, No. 326
(Criminal)

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Coram: Hon Yang CJ, and Power VP

Date of hearing: 27 August 1993

Date of judgment: 27 August 1993

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted on one count of possession of dangerous drugs for the purpose of unlawful trafficking therein, and one count of possession of apparatus fit and intended for injection of a dangerous drug.

2. The quantity of drugs allegedly found in the possession of the applicant was 40.39 grammes of a mixture containing 21.05 grammes of salts of esters of morphine. The apparatus found in his possession was a syringe fit and intended for injection of a dangerous drug.

3. In his Reasons for Sentence, the learned trial judge referred to the number of straws, plastic bags and quantities of cash found in the applicant's room which, in his judgment, suggested a not inconsiderable proportion of the drugs found in his possession were for the purposes of trafficking.

4. In his Reasons for Verdict, the judge referred to the amount of money found in what he described as unusual circumstances. He referred to the explanations given by the applicant at the trial, which sought to explain why he had various sums of money in his possession on the day he was arrested.

5. The applicant appealed against his conviction in respect of the charge of possession of dangerous drugs for the purpose of unlawful trafficking and, on 8 December 1992, his appeal was allowed and the conviction on that count was quashed.

6. On 23 December 1992, the applicant wrote to the Registrar of the Supreme Court and enquired about a sum of money which the learned trial judge had ordered to be forfeited when he convicted the applicant on both the first and the second charges, and the sum of money forfeited was $12,105.70. The Registrar then referred the matter to the learned trial judge who in his reply referred to the fact that the applicant was successful in his appeal as regards the first charge only and, his conviction on the second charge being valid, there was no reason for him to alter his order for forfeiture of the money in question. The applicant was informed of the judge's decision, hence the application before us this morning. It is argued on behalf of the applicant that, in the absence of a conviction in respect of the first charge, the money found in the applicant's premises could not be said to be referrable to any trafficking activity of the applicant.

7. In our view, whilst the judge had the power to order forfeiture in respect of the offence in the second charge, from the tenet of his Reasons for Sentence, it would appear that he, using the words of Counsel for the applicant before us, "linked the cash (or a substantial part thereof) to the applicant's believed trafficking activities". In our view, it would not seem to be a correct exercise of the judge's discretion if he were to connect the fairly sizeable sum of money to a charge of possession of apparatus, namely, a syringe, for the purpose of injecting a dangerous drug. Indeed, Mr Saw acting for the Crown, in his usual candid manner, does not seek to oppose this application. For these reasons we allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. We quash the order for forfeiture of the sum of money in question.

Representation:

Mr Jeevan Hingorani (DLA) for Applicant

Mr D G Saw (Crown Prosecutor) for Crown/Respondent