The Queen v. Wong Pak Bo and Others
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IN THE COURT OF APPEAL 1987 No. 372 BETWEEN THE QUEEN and WONG PAK-BO (D.2) SZETO LEUNG (D.3) WONG WAI-LAM (D.4) __________________ Coram: Yang, Ag. C.J., Power, J.A. Jones, J. Date: 27th November, 1987 __________________ J U D G M E N T __________________ Yang, Ag. C.J. - 1. This is an application by D.2, D.3 and D.4 for leave to appeal against their conviction as well as sentence. 2. The evidence adduced on behalf of the prosecution in the court below was that on 10th March, 1987, a police party raided certain premises known as Block B, 5th Floor, 119 Portland Street in Kowloon. 3. They saw D.1 outside the premises and escorted him to the flat in question and gained entry by means of the keys in the possession of D.1. 4. It was not disputed that D.4 was the principal tenant of the apartment and D.1 and D.2 his sub-tenants. D.3 was a visitor who happened to be at the scene at that time. 5. The evidence showed that as the police entered, D4 was standing in the sitting room and D.2 and D.3 were found inside the room rented by D.1. There was a desk in D.1’s room on which the police found certain packets of dangerous drugs totalling some 4 grammes. Also, certain paraphernalia for the purpose of inhaling and injecting dangerous drugs were found in the room. 6. Inside a pair of trousers in that room the police found other quantities of dangerous drugs. In the drawers of the desk were documents including Hong Kong re-entry permits issued to D.1 and D.2 and also bank passbooks in the name of these two defendants. Furthermore, there were tenancy agreements and rent receipts in the name of D.1, D.2 and D.4. 7. On the person of D.2 and D.4 keys which fitted the door to the flat were seized. In the case of D.2 a key fitted the door to his room was found. 8. It is not disputed that, in the case of D.2 and D.4, the presumption which is provided for in section 47 of the Dangerous Drugs Ordinance applied. The grounds of appeal advanced on behalf of these two defendants, inter alia, are that the judge relied too heavily on the presumption, relied too heavily on the question of credibility of the defendants who gave evidence and failed to take into account a number of factors, such as the fact that D.1 admitted to sole possession of the dangerous drugs and that it was a room rented by D.1 in which the dangerous drugs were found. 9. We have given careful consideration to all the grounds advanced by Mr. Chan on behalf of D.2 and D.4 and it is due to no disrespect on our part that we do not think it necessary to discuss these grounds in detail save to say that we find that there are no merits in the arguments advanced before us this morning. 10. D.3 does not really argue that the presumption of possession did not apply in respect of the quantity of dangerous drugs found on the desk in the room in which he was a visitor, namely, D.1' s room. As the quantity found on the table was some 4 grammes, the presumption of trafficking arose. It is, therefore, in truth not an appeal against conviction of possession for the purpose of trafficking but an appeal to this court to say that the possession was not in respect of all the drugs found on the premises but only the limited quantity found on the table. 11. We are therefore of the view that this not being a true application for leave to appeal against conviction; the application has to be dismissed. 12. In the light of what we have said about the grounds of appeal advanced on behalf of D.2 and D.4; their applications for leave to appeal against conviction, too, are dismissed. 13. We now come to the question of sentence. D.2 and D.4 this morning, applied for leave to withdraw their applications for leave to appeal against sentence and we have granted them leave permitting them to withdraw their applications. 14. D.3’s application for leave to appeal against conviction having been dismissed, this judgment is concerned only with his application for leave to appeal against sentence. 15. D.3 was sentenced to 3 years' imprisonment for possession of 42.43 grammes of a mixture containing 1.7 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. Before us, Mr. Bruce conceded on behalf of the Crown that the quantity of drugs in which D.3 was involved was only about 4 grammes and not the quantity charged. These were the drugs on the surface of a table in the room in which D.3 was at the time a visitor. 16. In the circumstances, D.3's sentence on this charge must be assessed on the smaller quantity. Mr. Alderdice, on behalf of D.3, contends that the Court should approach the case on the basis that the trafficking was limited to that between D.1 and D.3 (both of whom were in that room, and of which D.1 was the sub-tenant) who were about to consume the drugs themselves. There being no evidence to substantiate this allegation, we are of the view that this is not an approach we can adopt. 17. On the basis of possession of about 4 grammes and following Chan Chi Ming[1], we allow the application, treat the application as the hearin~ of the appeal and allow the appeal against sentence. 1he sentence of 3 years is accordingly reduced to 10 Ii1onths. The sentence of 6 months each on a charge of possession of apparatus fit and intended for injectin6 dangerous drugs and the other for possession of apparatus fit and intended for inhaling a dangerous drug are to stand. 18. In this connection, we were informed that the Magistrates Courts are disposed to pass sentences of between 6-15 months for that sort of quantity. These sentences are way below the 6uidelines suggested in the case of CHAN Chi-ming1. We deprecate this practice if it exists and would recommend that magistrates should have proper regard to the guidelines laid down in that case. Anthony K.K. Chan (Philip S.W. Wong & Co) for D.2 & D.4 (conviction only) D.2 WONG PaK-bo and D.4 WONG Wai-lam in person (re sentence) G. Alderdice (P.T. Yeung & Tang) for D.3 A.A. Bruce for Crown/Respondent [1] [1979] H.K.L.R. 491 |