Wong Chung v. The Queen

CACC000426/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 398 OF 1971

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CRIMINAL APPEAL NO. 406 OF 1971

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CRIMINAL APPEAL NO. 413 OF 1971

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CRIMINAL APPEAL NO. 425 OF 1971

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CRIMINAL APPEAL NO. 426 OF 1971

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CRIMINAL APPEAL NO. 442 OF 1971

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CRIMINAL APPEAL NO. 467 OF 1971

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Coram: Pickering, J.

Date of Judgment: 5th August, 1971.

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JUDGMENT

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1. In each of these cases the appellant was convicted for possession of dangerous drugs for the purpose of trafficking therein and the appeals are variously against conviction or sentence or both.

2. All the cases appear to have been decided before the decision of the learned Chief Justice in LEUNG Lin-luk v. The Queen (Criminal Appeal 564 of 1970) was generally known; in each case the charge concerned a mixture containing salts of esters of morphine, and since in no case did the mixture also contain in the prescribed minimum quantity the drugs specified in sub-sections (c)(vi) and (e) of section 46 of the Dangerous Drugs Ordinance, it follows that the statutory presumption as to possession for the purpose of trafficking contained in the section did not in fact arise.

3. In each case the conviction should have been for simple possession of dangerous drugs rather than for possession for the purpose of trafficking. Since it appears on the face of the record that the convictions were wrong it was incumbent upon me, under the inherent jurisdiction of the Court to see that justice is done, to treat those appeals which were against sentence only, as appeals against conviction. I allowed the appeal in each case and substituted a conviction for simple possession of dangerous drugs and, since clearly the substituted convictions merited lesser sentences than the originals, I reduced the original sentence imposed by such amount as appeared appropriate in each case.

4. In the one case (Criminal Appeal 406 of 1971) in which smoking dangerous drugs was also the subject of conviction and appeal there was no merit in the appeal against smoking and I dismissed the appeal in respect of that charge.

5. In conclusion I would say that I agree with the observation made by one learned magistrate Mr. N.P. Power, that it is virtually certain that the intention of the legislature was to impose a presumption which dealt with the problem of drugs as that problem exists in Hong Kong. The vast majority of seizures of dangerous drugs from the person involve admixtures containing dangerous drugs and a base. It is hardly conceivable that salts of an ester of morphine contained in such an admixture were not intended to be caught by the presumption arising under s.46 but the wording of the legislation is inadequate for that purpose and the provision being a penal provision of a drastic nature, it must be construed strictly in favour of accused persons. The learned magistrate I have mentioned was in error in trying to make the Ordinance work by reading into it an intention inadequately expressed and by ignoring the judgment of the learned Chief Justice in LEUNG Lin-luk v. The Queen (Criminal Appeal 564 of 1970) which judgment was binding upon him.

6. The effect of s.46 of the Dangerous Drugs Ordinance as it stands is to render the presumption of possession of dangerous drugs for the purpose of trafficking, a limping provision and if it is to walk upright, amending legislation is required.

Representation:

Appellant in person

Lucas S.C.C. for Crown.