Cheung Kwok-hung v. The Queen
Read the full judgment text of CACC 503/1976 on BabelCite. This Court of Appeal judgment.
1. The appellant appeals against a sentence of two and a half years imposed upon him following upon his conviction upon a single charge of possession of dangerous drugs for the purpose of trafficking. He admitted being in possession but said that the drugs were for his own consumption. The issue therefore was whether the relevant presumptions provided by the Ordinance had been rebutted.
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CACC000503/1976
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----------------- Coram: MuMullin, J. in Court. Date of Judgment: 26th May, 1976. ----------------- JUDGMENT ----------------- 1. The appellant appeals against a sentence of two and a half years imposed upon him following upon his conviction upon a single charge of possession of dangerous drugs for the purpose of trafficking. He admitted being in possession but said that the drugs were for his own consumption. The issue therefore was whether the relevant presumptions provided by the Ordinance had been rebutted. 2. The facts were simple in the extreme. The defendant was seen walking in the vicinity of Rennie's Mill by two police officers and on their approaching he threw two packets on to a roof nearby. He was then arrested and the two packets upon being opened revealed the existence of 18 smaller packets which on examination were proved to contain, in total quantum, a mixture amounting to 2.4 grammes of which 0.7 of a gramme was salts of esters of morphine. The question whether the presumptions are rebutted by evidence of this kind, that is evidence that the drugs are for the accused's own consumption, is very much a matter of first impression for a magistrate to decide but in such cases the actual quantum of the drugs must in my view be a very important factor in relation to the length of sentence imposed. This is one of those cases in which one might say that the bare minimum of necessary proof of trafficking exists. It is provided by proof of mere possession. Thereafter the machinery of the Ordinance coupled with the failure of the accused to account convincingly for his possession takes the prosecution home. In terms of mere possession it is far different from many other cases in which positive indications of trafficking are available upon the evidence. It is, admittedly, a difficult and anxious decision for a magistrate to make when the amount of drugs involved is small enough to make it possible that possession was for personal consumption only. Yet the difference in gravity between the offences of trafficking and possession for use is great and the penalties they attract are correspondingly disparate, and rightly so. One feels that there must be cases when the story of "laying in a stock" must be true. But even when the court finds that it is probably untrue then I would think that in cases of "bare possession" of quantities which could be consumed in a few days by a confirmed addict sentences at the minimal end of the trafficking scale may often be justified. In saying this I realize that an addict who is not in any real sense a trafficker may well use his own personal stock to purchase goods or favours from other addicts. Possibly it was this aspect of "trafficking" which was in the mind of the Legislature in fixing the presumptions attracting minima so low. 3. In a case yet to be considered this morning where the evidence does imply positive acts of trafficking a sentence of two and a half years was imposed. The previous conviction of the present appellant was as long ago as 1969. That was also for trafficking and he received a sentence of nine months. It may reasonably be inferred that the quantity then involved was also small. He does not appear to have been in trouble, so far as the record goes, since then. In these circumstances it appears to me that the sentence of two and a half years is manifestly excessive. The appeal is allowed and the sentence will be reduced to one of eighteen months.
Representation: Appellant in person. Mr. Amey for Crown/Respondent. |