The Queen v. Ng Yuk Tong

IN THE COURT OF APPEAL

1986, No. 486
(Criminal)

BETWEEN

THE QUEEN

and

NG YUK TONG

____________________

Coram: Yang & Silke, JJ.A. & Penlington, J.

Date of Hearing: 13th March 1987

Date of Judgment: 13th March 1987

____________________

JUDGMENT

____________________

Silke, J.A.

1. The Applicant, Ng Yuk Tong, aged 74, appeared for trial on a charge of possession of dangerous drugs for the purpose of unlawful trafficking and on a second charge: possession of equipment fit and intended for smoking a dangerous drug. The equipment was a generality of towels, cloths, spatulas, penknife, scrapers, 2 phials, 2 opium pipes and 1 opium lamp. To that particular charge, he pleaded guilty. He said they were his.

2. The drug which he was alleged to possess for the purpose of trafficking was opium: 2,416.9 grammes of raw opium, 681.9 grammes of prepared opium and 73.3 grammes of opium dross.

3. He admitted the possession of those quantities but he denied that he had them for the purpose of unlawful trafficking and the trial proceeded on that basis.

4. He now seeks leave to appeal against his possession for trafficking conviction and against his sentence of two years' imprisonment.

5. He gave evidence in relation to his own consumption. He had been an opium addict for some fifty years. He described his daily consumption as being 0.10 or 0.15 of a tael and he said he purchased the raw opium in order to build up a supply for himself. He transmuted tile raw opium into prepared opium.

6. The total amount, including the actual quantity of raw opium found, would have come to 65.5 taels when prepared. He said he paid $400 to $500 on an average for 10 taels of opium and he normally bought 5 or 10 taels at a time. The money had come from the sale of land in 1984 from which he received a total of $60,000. He had put this into a bank, drawn it out at various times and, at the end of 1984,he still had $43,000 left in that account. A bankbook was produced to this effect.

7. It is Mr. Cheng Huan's submission that the trial judge, in arriving at the value of the opium found and in evaluating the period during which this wou1d be consumed, took the higher end of all of the figures given by the Applicant. He, for example, instead of balancing on the basis of $400 per tael, calculated on the basis of $500 and in any event came to a total of $40,000 greater than even those calculations would have warranted. He also calculated on the basis of over 16 months supply when on another calculation that would have been but 13 months supply. In relation to the many containers found, the judge took the view that if the opium were for his own consumption, it would be unnecessary for the Applicant to put it in the number of phials found which totalled over 40.

8. There was agreed evidence which included the Chemists Certificate which itemised all the containers found in the Applicant's premises on the 6th of May when the raid took place. There were two metal cans which contained the majority of the grammes of raw opium. There were also 8 phials with each contained prepared opium, the total weight of the contents being 30 grammes. Other phials contained 34.8 grammes, 30.2 grammes, 17.4 grammes and 17 grammes of prepared opium. There was also found in one plastic bag 32 further phials, each of which had traces of opium.

9. While we accept that the trial judge did take the higher end of the calculations based upon the figures given to him by the Applicant, the substantial quantity found together with its cost, the items in which it was held, including the 32 phials which had traces of opium, were matters which he could, and could properly, take into account in considering whether or not the Applicant had rebutted the presumption. That he has taken the higher figure is not something which by itself would cause us to interfere.

10. In conclusion the trial judge said this:

“Having taken into account the defendant's financial means, his addiction, the quantity of drugs and the number of phials found, his daily consumption, and his explanation of stocking of the drugs, I was not satisfied that lie had discharged his burden of rebuttal on the balance of probability."

On the facts before him he was perfectly entitled to come to that finding. The application for leave to appeal against conviction is therefore refused. The application in respect of sentence is adjourned. A medical report is requested.

Cheng Huan, Esq. (Chan & Chuk) for Applicant.

A.S. Hodge, Esq. for Crown/Respondent.