Leung Lok-nin v. The Queen
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CACC000564/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 564 OF 1970 -----------------
Coram: Rigby, C.J. Date of Judgment: 19th May, 1971. ----------------- JUDGMENT ----------------- 1. The appellant, a young man aged 22, was charged with possession of dangerous drugs for the purpose of unlawful trafficking; the particulars of the charge as laid were that he had in his possession for the purpose of unlawful trafficking:-
2. The facts of the case were that the cubicle occupied by the appellant on third floor premises at 465 Queen's Road West were searched by police officers attached to the Narcotics Squad of the Royal Hong Kong Police Force. When the police officers entered the cubicle they found the appellant sitting on the bed. Upon searching the cubicle the police officers found under the pillow of the bed on which the appellant was sitting two plastic packets containing suspected dangerous drugs. On top of a chest of drawers in the cubicle they found a cigarette tin containing two packets of suspected dangerous drugs, two cigarettes, 39 pieces of brown paper and a penknife. The contents of the various packets and the two loose cigarettes were analysed by the Government Chemist. Upon analysis they were found to contain the quantities of dangerous drugs set out in the charge sheet itself. 3. The defence put forward by the appellant was an admission by him of possession of drugs but he maintained that they were for his own consumption. 4. The learned magistrate dealt in some detail in his subsequent Statement of Findings with the evidence given by the appellant in support of his defence that the drugs were for his own consumption. The quantity of drugs found was such as to raise the statutory presumption (subject to what I have later to say) that the drugs were for the purpose of trafficking and the burden of proof consequently shifted to the accused to satisfy the magistrate, on the balance of probabilities that he was, in truth and in fact, in possession of the drugs not for the purposes of trafficking but for his own consumption and use. The appellant failed so to satisfy the magistrate and the magistrate accordingly convicted him of the offence as charged. Subject to what I have hereafter to say, I am satisfied that there was ample evidence to support the conviction. 5. Mr. Boy, Crown Counsel, with characteristic fairness, has pointed out that in so far as the four packets (each containing ten packets) containing mixtures of salts of esters of morphine referred to in items (i) and (ii) of the charge are concerned having regard to the precise wording of Section 46 (c), (d) and (e), it is at least arguable whether the statutory presumption contained in that section is applicable to, or can be applied to, the contents of these packets. In order to appreciate the argument raised, it is, I fear, necessary to set out the section itself. It enacts:
6. It must, I think, be clear, that the first five items referred to in Section 46(c) refer to drugs in their pure and unadulterated form since if those items were intended to include a mixture of those drugs it would not have been necessary to add item (vi). It is to be observed, however, that item (vi) does not include mixtures containing salts of an ester of morphine; it refers only to mixtures containing morphine or any preparation of diamorphine. Section 46(d), which deals only with the weight of drugs as distinct from the number of packets, makes no reference to mixtures; no reference is contained in Section 46(e) to mixtures containing a salt of an ester of morphine. In this connection, I have had my attention drawn to the careful and interesting judgment of Mr. Hooper in Criminal Case No. W.6638 of 1969. It is of value to refer at some length to that judgment. Mr. Hooper states - in reference to Section 46(d) and (e) -
He then goes on to say:-
7. With respect, I find myself unable to agree with the latter part of his conclusion and findings. If it be conceded - as I think it must be - that items (i) to (v) in (c) and (d) apply to the drugs therein mentioned in their unadulterated form then it seems to me that when one is considering "mixture" one must look at the subsections themselves - subsections (e)(vi) and (e) - to see whether that mixture is provided for in the subsections. In other words, when the case is concerned with a mixture the court is confined to those provisions of the section which deal with mixtures; the legislation having chosen to make specific reference to, and to deal specifically with, mixtures. It may be, I know not, that a salt of an ester of morphine in the relevant subsections. The fact remains, however, that such a mixture is not included and, in my view, as a necessary consequence, the statutory presumption contained in the section does not arise in cases where a person is found in possession of a mixture containing salts of esters of morphine - unless, of course, the mixture also contains in the prescribed minimum quantity the drugs specified in the relevant subsections (c)(vi) and (e). 8. The argument is, however, purely of academic interest and of no practical value to the appellant in this case since he was found to be in possession of two packets containing a mixture of barbitone of a total weight of 6.2 grammes, of which the weight of the barbitone itself in that mixture was 2.8 grammes. He was, therefore, caught by Section 46(e) of the Ordinance and, consequently, presumed to be in possession of that quantity of barbitone for the purpose of trafficking therein. The magistrate rejected his defence that he was in possession of that quantity of drugs for his own use and consumption and convicted him of the offence as charged. 9. There are no grounds for interfering with the conviction that the appellant was in possession of a quantity of drugs for the purposes of unlawful trafficking and the appeal is accordingly dismissed. Representation: Appellant in person. Boy, P.C.C. for Crown/Respondent. |