Yeung Wai-chun v. R.

CACC000446/1992

1992, No.446
(Criminal)

IN THE COURT OF APPEAL

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Coram: Hon Penlington, Nazareth and Bokhary, JJ.A.

Date of hearing: 16 March 1993

Date of judgment: 16 March 1993

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J U D G M E N T

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Nazareth, J.A.:

1. The applicant Yeung Wai-chun was on the 13th October 1992 convicted by Deputy Judge Anthony To in the District Court for possession of 49.58 grammes of a mixture containing 27 grammes of salts of esters of morphine, for the purpose of unlawful trafficking and she was sentenced to 4 1/2 years imprisonment. She now seeks leave to appeal against both the conviction and sentence.

2. The facts were quite straightforward. As she stepped out of her dwelling, that is Room 726 in Hang Hing House, Hing Wah Estate, Chai Wan, she was stopped by the police and taken back to her room. After a search, a plastic bag was found hanging from a bar of the kitchen window but dangling outside. In it were six packets wrapped in newspaper each of which contained around 50 sealed drinking straws each containing dangerous drugs. Altogether there were 279 straws containing the 49.58 grammes of the mixture charged.

3. A Hong Kong Housing Authority tenant's card and a demand note for water charges both in the name of the applicant and pertaining to the premises and also a bunch of keys pointed clearly to her being the occupant, and indeed she does not dispute that.

4. She did not give evidence below but in her notice of application in relation to her conviction, she says:-

"As I had been suffering from severe pains resulting from various illnesses, I used heroin as an anodyne. I needed to take 12 tablets a day. Because of the recent rheumatism symptoms I bought larger quantities of them and stored them at home for fear they might not be readily available."

5. Before us today, she pursues that version saying that she bought the drugs for her own consumption, that she had been taking drugs for several tens of years, nobody bought the drugs for her, that while she was walking upstairs she was intercepted by the police who found the drugs hanging in the balcony, and the reason she had drugs on her window was to avoid them getting moist.

6. The real question was whether the drugs she had in her possession were for the purpose of trafficking and with that matter, the judge dealt in the following way :

" There were 279 straws of drugs totalling 49.58 grammes of a mixture containing 27 grammes of salts of esters of morphine. Each straw contained what an addict would need for one dose. These were packed in six different packets and hung outside the window. They were packed in a highly unusual form for addicts to keep for their own use. The packaging was more consistent with package for retail purpose than for personal consumption.

According to Lau Tak Ming v. R., [1992] 2 HKLR 370, the average addict takes 0.5 to 1.0 gramme of salts of esters of morphine per 24 hours. The drug is of such a large quantity as to last for one to two months for the average addict.

It is common knowledge that the cost of buying drugs in this retail form, i.e. in 279 straws, is much higher than buying in bulk form. It is also common knowledge among addicts that the risk of keeping drugs in this retail form is much higher.

The drugs were kept hanging outside the window. This is an unusual way of storing drugs for personal use over a period of two months. The drugs may be damaged by weather over such a long period. On the other hand, if the storage is temporary as in the case where the drugs would be disposed of within a short period, the package would offer adequate protection. Hanging them outside the window would also be a safe way of concealing the drugs."

7. The learned deputy judge then dealt with the question of a syringe alleged to have been in the premises, with which we need not concern ourselves here and then went on:-

"There was no dispute that the drugs were in the possession of the accused. Having considered the above, I draw as the only irresistible inference that the drugs were possessed by her for the purpose of unlawful trafficking. I therefore convict the accused as charged."

We think that the deputy judge was entitled to deal with the matter in that way and to draw the inference he did. He obviously considered the question of whether the drugs were for the applicant's personal consumption and rejected that possibility, and as I have said he was entitled to do so.

8. Upon that basis, we see no reason to grant leave to appeal against conviction.

9. As to the applicant's application for leave to appeal against sentence, in her notice of application, the applicant stated that the drugs were solely for her own consumption, that she has a 12 year old son who desperately needed her care and her residence will be due for demolition this year. Since her husband had passed away in May 1992, she alone has been responsible for raising her son and paying his educational expenses. She added that she is now repentant for the mistake she had made and hopes for a chance to turn over a new leaf. She promises to reform herself and redress her past wrongful acts. She has repeated those grounds before us this morning and added that her son is now being looked after in a Salvation Army house which was arranged by a probation officer.

10. The deputy judge correctly, in our view, referred to the guidelines in Lau Tak Ming [1992] 2 HKLR 370, according to which the quantity in this case would attract a sentence of 5 to 8 years and took as an appropriate starting point 6 years. We can find no fault with that which indeed appears to be an appropriate starting point in the circumstances. The judge went on to refer to her previous convictions and to her having been released from custody in September 1992 for another offence. He then went on to say:-

"In the present case, however, the accused had admitted possession. This nevertheless saved some of the court's time. Though [the applicant] challenged the cautioned statement which I ruled inadmissible, she did not give evidence on the general issue. I understand that she has just been released from custody. Her desire to contest the present case is understandable. For the above reasons, I would give her the same discount as I would have given had she pleaded guilty and had she been sentenced together with the last offence. I therefore reduced the sentence to four and half years. This is a great discount which but for the above considerations I would not have given."

11. Clearly, he treated her with some generosity in giving her a discount of 1½ years. However that may be, it is equally clear that the sentence cannot be said to be excessive and for those reasons, leave to appeal against sentence must also be refused. Accordingly, the applicant's application for leave is refused.

Representation:

Mr A.A. Bruce (The Crown) for Respondent

Applicant in person