R. v. Siu Man Hing

CACC000566/1994

IN THE COURT OF APPEAL

1994, No.566
(Criminal)

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Coram: Hon. Power, V.-P., Litton, V.-P. and Bokhary, J.A.

Date of hearing: 28 April 1995

Date of judgment: 28 April 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced a charge of trafficking in dangerous drugs. It was particularized that on 16th July 1994 outside the public toilet at Sai Bin Wai, Yuen Long, he unlawfully trafficked in dangerous drugs, namely 43.56 grammes of a mixture containing 17.68 grammes of salts of esters of morphine. He pleaded not guilty to that charge and was, after trial before Judge Sweeney in the District Court, found guilty and sentenced to imprisonment for three years. He now seeks leave to appeal against that conviction.

2. The facts were simple ones. Upon being intercepted by the police, a request was made that he allow himself to be searched. He consented but threw down a soft drink box which he had been carrying. When asked what it was he said it was just rubbish.

3. At trial the applicant gave no evidence. The trial judge found

"there is a compelling inference that anyone found in the street with 100 packets of heroin is there to sell part or all of that supply, or at least has possession of the same for the purposes of unlawful trafficking."

The drugs the subject of the charge were found on the applicant. They were contained in 100 straws which were divided in 5 parcels each of 20 straws.

4. The trial judge, having drawn what he described as "a compelling inference" of trafficking, went on to observe:

"I am aware from listening to evidence in other dangerous drug cases over the years that it is possible to buy heroin more cheaply in bulk. However, 'in bulk' means just that, in one or two plastic bags which the purchasing addict then subdivides into straw containers for his daily 'hit'. To subdivide a bulk of 43 grammes into 100 separate packets is patently labour-intensive and would not be done by any dealer for the purposes of selling to a single user - there would be no advantage to the dealer."

The only real attack that has been lodged upon the propriety of the conviction rests upon the passage which I have just read. It is submitted that it was wrong for the judge to use information gleaned from other cases in coming to his conclusion in this case. Had a defence been raised of bulk buying, this objection might have some merit. However no such defence was raised. On apprehension, the applicant threw down the packet saying it was rubbish. He neither gave nor called evidence. The observations of the trial judge, given that he had already drawn the "compelling inference", were unnecessary to his decision. Whatever criticism might have been made of them in other circumstances, there is no weight to the criticism made of them in the instant case.

5. The application for leave to appeal against conviction is therefore refused.

Representation:

Mr. D.G. Saw, S.A.C.P., leading D. Pang, A.P.C.C. (Ag.) (Crown Prosecutor) for the Respondent.

Applicant in person.