Mak Tak v. The Queen
Read the full judgment text of CACC 466/1971 on BabelCite. This Court of Appeal judgment.
1. Whilst the Grounds of Appeal and Additional Grounds of Appeal in this case could not have succeeded, the fact remains that one of the charges was that of possession of dangerous drugs for the purpose of unlawful trafficking and the relevant dangerous drug was salts of esters of morphine contained in an admixture.
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CACC000466/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 466 OF 1971 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 13th August, 1971. ----------------- JUDGMENT ----------------- 1. Whilst the Grounds of Appeal and Additional Grounds of Appeal in this case could not have succeeded, the fact remains that one of the charges was that of possession of dangerous drugs for the purpose of unlawful trafficking and the relevant dangerous drug was salts of esters of morphine contained in an admixture. 2. There have been numerous recent cases in which, following LEUNG Lin-luk v. The Queen (Criminal Appeal 564/70) the appeal has been allowed and the conviction reduced to one of simple possession of dangerous drugs for the reason that such an admixture is not caught by the presumption imposed by s.46 of the Dangerous Drugs Ordinance. 3. In the present instance the learned magistrate has attempted to read the mind of the Legislature and has assumed an intention not expressed in s.46. He has also ignored the case quoted above which, as a judgment of this Court, was binding upon him. 4. The appeal upon the second charge is allowed and, for the conviction of possession of dangerous drugs for the purpose of trafficking, there is substituted a conviction for simple possession of dangerous drugs. The sentence of two years' imprisonment is reduced to one of 12 months' imprisonment. The appeal against the conviction for smoking a dangerous drug, upon which a concurrent sentence of four months' imprisonment was imposed, is dismissed. 5. As I have had occasion to remark previously, the presumption of possession of dangerous drugs for the purposes of trafficking, contained in s.46 of the Dangerous Drugs Ordinance, is a limping animal. It is however not for the courts to presume the intention of the Legislature and to provide their own corrections. The splint, if one is to be applied, must be a legislative splint. Representation: LEUNG Hung-yu, Esq. for the appellant. |