Lee Se-biu v. The Queen

CACC000054/1978

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Coram: Trainor, J.

Date of Judgment: 31st January, 1978.

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JUDGMENT

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1. Lee Se-biu was convicted on the 8th December last for having in his possession drugs for unlawful trafficking, and for having in his possession an instrument fit and intended for the injection of dangerous drugs. On the first count he was sentenced to two years and three months' imprisonment and on the second count five months' imprisonment to be served concurrently. Against his conviction and sentence for possession for the purpose of unlawful trafficking he now appeals.

2. The facts of the case were that on the date in question a raid was carried out on the premises of the appellant. On entering the premises the appellant was seen lying on a bed. He was seen to pick up something and throw it out of the window. What he threw out of the window was subsequently recovered and was found to be a package in which was a mixture of 12.8 grammes containing a total of 4.8 grammes of esters of morphine. In addition there was found in it a syringe. A further search of the premises produced a pair of scissors, a stapler with staples inside and some sheets of yellow paper and white paper.

3. The possession of the drugs and the syringe was not denied by the appellant, but he maintained that he was an addict and that the drugs were acquired for his own use. On being searched a thousand dollars was found. The appellant in his evidence said that that was a deposit he had received as a motor car salesman. This was confirmed by a witness called on his behalf. The witness said that he had paid the sum of $1,000 to the appellant as a deposit on a vehicle, although it may be noted that the witness did not know what sort of vehicle was to be purchased on his behalf.

4. The learned magistrate in his statement of findings said that there was no doubt that the appellant had the drugs in his possession and the quantity was much more than enough to raise the presumption of possession for unlawful trafficking. He said that having considered all the evidence carefully he did not believe that the appellant had possession of this very substantial amount of dangerous drugs for his own use only and he found him guilty.

5. Those were the observations of the learned magistrate at the conclusion of the case but there is an interesting omission in his observations at that stage in that he completely forgot that there was a second count that of possession of the instrument. In fact the learned magistrate wrote out and signed the record and the conviction and penalty for unlawful trafficking without regard to the charge of possession of an instrument for injection. It was only later that he made a note that he had overlooked the charge of possession of the instrument.

6. It occurs to me that had the learned magistrate had it in his mind at the time he reached the conclusion he did, that these goods were wrapped up in a parcel in which was an instrument for injection, he might well have accepted the case for the appellant that he had these drugs for his own use. The amount of drugs is substantial, nevertheless it is not beyond the possibility, and reasonable possibility, that this quantity had been purchased by the appellant for his own use. His explanation that he bought the quantity that he did because daily it is becoming more and more dangerous to buy drugs is an explanation that is quite credible.

7. I am very loath to interfere with the decision of the learned and experienced magistrate that was arrived at on the basis of evidence given by witnesses and the assessment of the veracity the reliability of those witnesses. Had the learned magistrate indicated that he had taken into consideration the existence of the hypodermic syringe wrapped up in the package I would have no alternative but to confirm his decision. He had overlooked that at the time he convicted and imposed the penalty he did and, therefore, I cannot exclude from my mind the possibility that he may not have taken it into consideration when he concluded that the appellant had the drugs for unlawful trafficking.

8. In the circumstances, and with the greatest hesitation, I am going to allow this appeal to the extent that I find the proper conviction should have been for unlawful possession of dangerous drugs and the penalty for that offence to be 18 months' imprisonment to date from his conviction in the lower court.

Representation:

Appellant in person.

Mr. Alderdice, c.c. for Crown.