The Queen v. Wong Wai-tak

HCMA001195/1985

BETWEEN:

Coram: Roberts, C.J.

Date: 18th December, 1986.

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JUDGMENT

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1. The appellant, WONG Wai-tak, appeals against both his conviction and sentence for possession of a dangerous drug for the purpose of unlawful trafficking.

2. The facts in dispute before the magistrate fell within a very narrow compass. Two police officers gave evidence that they stopped and searched the defendant, in a corridor near the men's lavatory, on the fourth floor of Block 15 of the Lok Fu Estate on 20th June, this year.

3. They testified that, when they searched the defendant, they found on him two packets containing suspected dangerous drugs. On analysis, these were shown to hold a mixture weighing 8.2 grammes containing salts of esters of morphine of just under 1 gramme.

4. The defendant called two witnesses, though he chose to give no evidence himself. The second of these witnesses only appeared on the scene after the drugs were said to have been discovered and knew nothing about what had happened other than what was told to her.

5. The first defence witness gave evidence that she saw the police officers search the defendant and that one of them asked the other if anything had been found on the defendant and the second police officer said nothing.

6. This is not a case in which there could have been any mistake, and the magistrate had to decide whether he believed the police officers or whether the evidence of the only relevant defence witness threw any doubt on the case as presented by the Crown.

7. He stated in his Statement of Findings that he wholly accepted the prosecution evidence and that he rejected the defence as suggested by the appellant in cross-examination. He also found the evidence of his two witnesses, a friend and his sister, valueless, by which he must have meant that insofar as their evidence was relevant he disbelieved it.

8. He recognized that there were a number of discrepancies in the evidence given by the different prosecution witnesses, but nevertheless came to the conclusion that they raised no reasonable doubts in his mind on the vital issue of possession.

9. A number of discrepancies were drawn to my attention by counsel appearing for the appellant, but they all related to peripheral matters and not to the actual finding of dangerous drugs in the possession of the appellant.

10. I can find no ground on which it would be proper for me to interfere with the findings of fact reached by the magistrate, all of which can be justified on the evidence put in front of him.

11. The appeal against conviction is, accordingly, dismissed.

12. In relation to sentence, it has been argued that the magistrate, who imposed a sentence of three years' imprisonment was improperly influenced by his knowledge that on two occasions, in 1979 and 1983, the appellant had been found guilty of trafficking in dangerous drugs and that the magistrate before whom he was convicted had ordered that no conviction should be recorded in each case.

13. I must note my surprise that a conviction should not have been recorded for an offence as serious as this, though I do not know why. It may simply have been an oversight, because the Drug Addiction Treatment Centres Ordinance provides that, where a detention order is made under that Ordinance, no conviction shall be recorded unless, in the opinion of the court, the circumstances of the offence so warrant.

14. However that may be, the object of giving magistrates power to record no conviction after a finding of guilt was to enable a defendant to avoid the disadvantages that a recorded conviction frequently brings. If no conviction is recorded, a court ought not subsequently to take it into account in determining sentence.

15. The magistrate makes it clear that he regarded the two unrecorded convictions as aggravating the present offence and that it was for that reason that he sentenced the appellant to what he describes as "the maximum term of three years' imprisonment". He is, presumably, referring to the guidelines set out in R. v. CHAN Chi-ming⁽¹⁾ These have been recently confirmed, with tariffs for other kinds of dangerous drugs, in R.v. CHAN Chi-man ⁽²⁾, which might, perhaps, for the future serve as the prime reference case for sentencing, in cases of possession of unlawful drugs for the purpose of trafficking.

16. I think that, if the magistrate had approached the question of sentencing in the manner which I have suggested, namely that he must disregard the earlier unrecorded convictions, he would have imposed a substantially lighter sentence than one of three years, which, is at the top end of the CHAN Chi-man bracket for possession of dangerous drugs in this quantity.

17. If he had disregarded the earlier unrecorded convictions, he would probably have imposed a sentence of two years, rather than of three. Accordingly I allow the appeal against sentence, quash the order of three years' imprisonment and substitute therefor a sentence of two years' imprisonment.

(1)    [1979] H.K.L.R. 491

(2)    A.R. 19/86

Representation:

Miss L. Delahunty (Hampton, Winter & Glynn) for Appellant

Mr. T.R.W. Jenkyn-Jones, Senior Crown Counsel, for Respondent/Crown Prosecutor.