Lo Po v. The Queen
|
CACC000577/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 577 OF 1971 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 29th October, 1971. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of possession of dangerous drugs for the purpose of trafficking and was sentenced to two years imprisonment, He appeals against conviction. 2. The charge concerned a mixture containing salts of esters of morphine, and since that mixture did not also contain in the prescribed minimum quantity, the drugs specified in sub-sections (c)(vi) and (e) of s.46 of the Dangerous Drugs Ordinance, it follows that the statutory presumption of possession for the purpose of trafficking, contained in the section, did not in fact arise. The possession was, of course, at a date before the amendment of the Dangerous Drugs Ordinance filling that particular lacuna in the presumption of possession for the purpose of trafficking. 3. This ground of appeal alone would have been sufficient to justify the substitution of a conviction for simple possession of dangerous drugs for the conviction recorded, but another matter must also be mentioned. 4. The appellant was charged with simple possession of dangerous drugs and not with possession for the purpose of trafficking yet the learned magistrate found that the presumption obtaining under s. 46 of the Dangerous Drugs Ordinance applied, and found the appellant guilty of possession for the purpose of unlawful trafficking. Such purpose never formed part of the particulars of the alleged offence and even if the drugs had been of such a nature and quantity as to attract the presumption under s.46, it was not open to the learned magistrate to convict him of possession for the purpose of unlawful trafficking in the absence of a charge of that nature. 5. The third schedule of the Dangerous Drugs Ordinance contains particulars of offences, other than that charged, of which a defendant may be convicted, and whilst it is open to a court to convict for possession of a dangerous drugs where the offence charged is possession for the purpose of unlawful trafficking therein, the converse is not provided for in the schedule. 6. Mr. Eddis, for the appellant did not seek to argue that a conviction for simple possession was unjustified, and in the result, the appeal was allowed, the conviction recorded set aside, and a conviction for simple possession of dangerous drugs substituted. 7. As to sentence, the appellant has no serious conviction in respect of dangerous drugs during the past seven years, his only two convictions during that period being for the possession of opium pills, upon which charge he was fined $50 upon each occasion. 8. The sentence of two years imprisonment will be set aside and substituted by one of four months imprisonment, a term which will result in the immediate release of the appellant. Representation: Eddis, Esq., for Appellant Carolan, C.C. for Crown. |