Lai Ming v. The Queen

CACC000495/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 495 OF 1972

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CRIMINAL APPEAL NO. 496 OF 1972

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CRIMINAL APPEAL NO. 498 OF 1972

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Coram: Leonard, J.

Date of Judgment:

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JUDGMENT

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1. In each of these appeals the appellant was sentenced to a term of three years' imprisonment to run consecutively to a term of imprisonment which had been imposed on him in another case. The sentences were imposed on conviction on charges of possession of dangerous drugs for the purposes of unlawful trafficking.

2. All the defendants were searched on the return to Victoria Reception Centre from the court in which they had been sentenced for the original offence. In each case a large quantity of dangerous drugs was found concealed in the anus of the appellant concerned. In each case they claimed to be in possession of the drug for consumption by themselves. Each was a confirmed drug addict with a long record including several convictions for possession of dangerous drugs. All were sentenced on the 18th of May 1972 and two had been discovered to be in possession of the dangerous drugs on the 8th of May 1972 while the third had been found in possession of drugs on the 10th of May 1972. The principles to be adopted in considering the sentence to be imposed in each case were therefore the same and as the pleas in mitigation made by them before me were almost identical I give a single judgment in respect of all three.

3. The learned magistrate was convinced in each case that the appellants had obtained the drugs from some course while in police custody and the facts of each case lead inevitably to the conclusion that the appellants were clearly being used as agents to introduce the drugs into the prison, presumably to distribute part of them and to use part of them for their own purposes. In each case they pleaded not guilty to possession for the purposes of trafficking and admitted simple possession but the learned magistrate rightly held that they had not rebutted the presumption which arises by virtue of Section 46 of The Dangerous Drugs Ordinance. As the learned magistrate pointed out, the importation of drugs into prison in such large quantities (2.7 grammes, 12.3 grammes and 7.5 grammes respectively of salts of esters of morphine) is something which strikes at the very roots of our penal system. The offence of possession of such large quantities of heroin for purposes of trafficking in prison inflicts much greater harm to society than a similar offence committed outside. Those peddling outside find a ready market for their wares among confirmed and incurable addicts but those peddling inside must find a market amongst those whom society is seeking to punish and also, and I hope not least, to reform. Punishment and reformation alike are prevented by trafficking inside the prison and the entire penal process set at naught. In the course of his statement of findings in Criminal Appeal 495, the learned magistrate makes the following comments :

"However, in three very similar cases, involving substantially greater amounts of drugs, prosecuted before me on the 8th June by Crown Counsel, in each case Crown Counsel has reduced a charge of 'Trafficking' to simple possession. They have referred me in so doing to TONG King-chuen v. Reg. (1972) Criminal Appeal No.225. I don't really find that decision particularly apposite to this case, but what is clear is that the Attorney General is solely responsible for prosecutions and had one of his officers prosecuted this appellant, it seems clear that the charge would have been reduced."

The case of TONG King-chuen v. Reg. was not a case of possession for the purposes of trafficking in the course of bringing drugs into one of her Majesty's prisons. In that case the learned Chief Justice remarked that

"where the quantity of drugs is not such that it manifestly indicates trafficking a court should be very careful before it rejects evidence tending to rebut the presumption."

I do not think the learned Chief Justice was doing more in that case than suggesting that the presumption might in individual cases be easy of rebuttal. He did not regard it as being rebutted, in that case, by a statement from the dock. Indeed the law seems clear. By Section 46 of The Dangerous Drugs Ordinance (Cap. 134):

"When a person who is proved to or presumed to have had in his possession more than one half gramme of an ester or morphine or a salt of an ester of morphine shall, until the contrary is proved, be presumed to have had such dangerous drug in his possession for the purposes of trafficking therein."

It is then for an accused person who has more than one half gramme of a salt of an ester of morphine in his possession and who maintains that this possession was not for the purpose of trafficking to prove "the contrary". He can only do so by leading credible evidence. For the contrary cannot be said to be "proved" unless the learned magistrate is satisfied on a balance of probabilities. I do not read the remarks of the learned Chief Justice in Criminal Appeal No. 225 of 1972 as suggesting otherwise.

4. Where a person is a confirmed drug addict and has an amount very slightly in excess of one half gramme in his possession, simple unsupported evidence by him that he had it for his own consumption may be sufficient to rebut the presumption. It depends on the facts of each case, and the impression the addict concerned makes on the magistrate. As I see it the larger the amount the greater will be the addict's difficulty in establishing, on that balance of probabilities, that he did not have the drug for the purpose of trafficking. To suggest, as all three of these appellants did before the learned magistrate, that they bought the drugs for their own consumption even before committing the crimes which led to their arrests and that they carried them around in their bodies while committing those crimes is utterly incredible. Even though they so stated on oath I do not consider that by doing so they came near to rebutting the presumption. If Crown Counsel was guided by the remarks of the learned Chief Justice in the three similar cases to which the learned magistrate refers in the passage quoted above I consider that Crown Counsel must have misunderstood those remarks. I enquired of Crown Counsel who appeared before me whether or not he knew whether the Crown Counsel who accepted pleas of guilty to chagres of simple possession in the three cases referred to had discussed the matter with the Director of Public Prosecutions; unfortunately he was not able to help me. However, he stated that his instructions were to seek to uphold the sentences imposed by the learned magistrate in the three cases before me. These were decided in May 1972. The three cases in which pleas to charges of simple possession were accepted were heard in June 1972.

5. My principal difficulty in considering the appeals before me arose from dislike of disparity of sentence. Crown Counsel, at my request, most helpfully drew up and submitted to me at an adjourned hearing a list of recent cases in which drugs had been smuggled into Victoria Remand Centre with the sentences which had been imposed. He drew my attention particularly to two of the cases referred to by the learned magistrate in which accused persons were originally charged with possession for the purposes of trafficking but the charges were reduced at the hearing to charges of simple possession. These cases were substantially the same on the facts as those before me. In one of them 6.4 grammes of salts of esters of morphine were involved and in other 5.8 grammes. A sentence of twenty months was imposed in each case.

6. I am quite satisfied that the accused persons in the cases before me were properly found guilty of possession for the purposes of trafficking. That others were dealt with leniently does not change that nor does the fact that a number of others in possession of considerable smaller amounts than those involved in these three cases were originally charged with simple possession only. In three of these cases where the original charge was simple possession sentences of nine months were imposed. The amounts of heroin involved were 2.89 grammes, 2.2 grammes and 1.39 grammes respectively. Nine months might have been a proper sentence if the offences had not been committed in prison or in order to bring drugs into prison but speaking for myself I would not say that a sentence of eighteen months' imprisonment for possession of any amount (however small) of salts of esters of morphine while in prison custody was unduly severe.

7. Since the appellants in these three cases before me were properly found guilty of possession for the purposes of trafficking, since they do not appeal from the convictions and since the sentences imposed on them were imposed before any "policy" of reducing charges to, or accepting pleas of, simple possession of amounts giving rise to the statutory presumption came into being, I cannot conclude that the sentences were manifestly excessive or wrong in principle. Nor do I consider that the disparity with later sentences merits interferences, nor can I find any other circumstance which does so.

8. Accordingly I dismiss these appeals.

Representation: