R. v. Au Wai Shing

CACC000536/1996

IN THE COURT OF APPEAL

1996, No. 536

(Criminal)

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Coram: Hon Power Atg CJ, Nazareth V-P and Mayo JA in Court

Date of hearing: 16 April 1997

Date of judgment: 16 April 1997

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Au Wing-shing, was, after trial, convicted in the District Court by His Honour Judge Christie on 9th September 1996 of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).

2. The drugs consisted of 22.87 grammes of a mixture containing 22.44 grammes of heroin hydrocholoride. The applicant was sentenced on 11th September to 5 years imprisonment. He now seeks leave to appeal against conviction and sentence.

3. The facts, which can be stated quite shortly, are as follows. At about 7.25 p.m. on the evening of the 16th May 1996 the police armed with a search warrant went to Room 1915, Tsui Pak House, Tsui Ping Estate in Kwun Tong, which was occupied by the applicant. The applicant let them in. They searched the premises and found the drugs charged hidden in the toilet. The applicant admitted to possession of the drugs to the police and to the court. But he claimed that they were not for the purposes of trafficking but for his own consumption.

4. He gave evidence of how he purchased and paid for the drugs that afternoon, of his rate of consumption, how long the drugs would last him and of the value of the drugs which, he said, was about $8-9,000.

5. The judge rejected his evidence as to his means to pay, method of purchase and rate of consumption. The judge accepted the evidence of the Narcotics Branch Inspector that the street level retail packaged value of the drugs was about $32,000. From the relatively large quantity of the drugs, their comparative purity, the value of the drugs and the other circumstances, he drew the inference that they were possessed by the applicant for the purpose of dealing with them in some way, i.e. for the purpose of trafficking.

6. In his written notice of application for leave to appeal against conviction the applicant specified the following home-made grounds of appeal:

"(1) The prosecution lacked concrete evidence to convict me

(1) I said during cross-examination and under caution that the drug was for my own use.

(2) The drugs were found in the premises I resided.

(3) No money was involved in the case.

(4) No actual customers were involved in the case."

He added this:

"The original judge failed to take the above factors into account when sentencing. He was too subjective and had committed several technical errors. I therefore appeal against verdict."

7. Before us today the applicant has added this. He says his lawyer did not help him at the trial. The situation was that he had explained to the lawyer his father, who was 70-80 years old was at home at the time, and that was why he was told to admit to the offence otherwise his father would be taken to the police station. He also says that at the time he was suffering withdrawal symptoms; he was not very sober and so when he was told to sign, he did so.

8. None of these latter matters, nor those in his written notice of application, is to the point since he admitted possession of the drugs. The only question was therefore whether they were in his possession for the purpose of trafficking. The judge drew the inference that the applicant's possession was for the purpose of trafficking. As we have said he drew that inference from their relatively large quantity, their comparative purity, the applicant's rate of consumption, his means and the circumstances before him. He was entitled to draw that inference. We can see nothing wrong in his doing so nor any reason why we should question that inference. There is plainly nothing in what the applicant has said before us, or in his five written grounds which would entitle us to intervene in this matter or to take the view that there is anything wrong with the conviction. We accordingly refuse leave to appeal against conviction.

9. We turn then to the application for leave to appeal against sentence. The applicant first claimed, actually in his reasons for leave to appeal against conviction, that the judge failed to take the five factors into account when sentencing. In his written notice of application for leave to appeal against sentence he said only that the sentence was too heavy. He hoped that this Court would consider his appeal. He has not added anything to those grounds.

10. What the judge did when sentencing the applicant was first of all refer to the range of sentence for between 10 and 20 grammes of heroin as being 5-10 years imprisonment. In that he was quite right. See R v Lau Tak-ming [1990]2 HKLR 370 where the guidelines provide exactly that. The judge then added this:

"This indicates a sentence of 6 years for the quantity in your case, but I note that you are serving recently imposed sentences totalling 10 months. I accept counsel's submission that no doubt you are a long time addict who has come to be used by traffickers. Therefore, I will fix your sentence at the lowest level within the range I have mentioned, that is, your sentence in this case, is 5 years' imprisonment. It is, however, consecutive to the existing sentences."

11. The judge was not ungenerous in fixing the sentence at the bottom of the range. Plainly, in the light of the foregoing guideline the sentence is not too heavy nor is there the slightest indication that the judge overlooked any of the matters to which he should have had regard. In the result, the sentence is not manifestly excessive and it is not wrong in principle. There is plainly no merit in the grounds relied upon. Leave to appeal against sentence is also refused.

Representation:

Applicant in person

Mr Francis Lo, APCC (Crown Prosecutor) for Crown/Respondent