Wong Ching v. The Queen

CACC000499/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 499 OF 1971

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Coram: Pickering, J.

Date of Judgment: 18th August, 1971.

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JUDGMENT

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1. The appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking and sentenced to two years' imprisonment. He now appeals against sentence.

2. The charge as laid involves "One packet containing 5.4 grammes of salts of esters of morphine", but when the certificate of the Government Chemist is examined it becomes apparent that what the packet contained was 13 grammes of a mixture containing 5.4 grammes of salts of esters of morphine.

3. In numerous recent cases possession of such an admixture has been held not to be caught by the presumption contained in s.46 of the Dangerous Drugs Ordinance and the method of charging possession of the salts of esters of morphine without any reference to the facts that these salts were in fact contained in an admixture appears to be a clumsy attempt to get round the recent rulings of this Court in the case of admixture. The Court cannot, however, close its eyes to the contents of the Government Chemist's Certificate and if admixtures of this type are intended to attract the presumption of possession for unlawful trafficking contained in s.46 of the Dangerous Drugs Ordinance those responsible for framing charges must seek amending legislation rather than rely upon their ingenuity in the framing of such charges.

4. I must treat the appeal against sentence as one against conviction, because it is clear from the evidence that the learned magistrate in reaching his verdict must have relied upon the presumption contained in s.46. The conviction for possession of dangerous drugs for the purpose of trafficking is set aside and a conviction for simple possession substituted. The sentence of two years' imprisonment is reduced to one of nine months.

Representation:

Appellant in person

Niamatullah C.C. for Crown.