The Queen v. Leung Chi Wai

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY ARPEAL NO 869 OF 1987

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 15th December 1987

Date of delivery of judgment: 15th December 1987

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JUDGMENT

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1. The appellant appeals out of time, with leave, against his conviction for possession of dangerous drugs for the purpose of unlawful trafficking, contrary to S. 7(1) of the Dangerous Drugs Ordinance, Cap. 134.

2. The appellant admitted possession of two bags of heroin containing a mixture weighing 7.25 grammes, but claimed it was for his own consumption.

3. The admitted facts disclosed that the appellant was stopped in the street by police officers who were suspicious and wanted to search him. At his request the search took place in the police station, where the heroin was found on his person.

4. The appellant gave evidence and admitted he had bought the drugs earlier that day and was taking them home. The quantity was sufficient to last him for four days and he intended to store them during that period.

5. The magistrate believed the appellant and was satisfied the drugs were for his own consumption. He nevertheless convicted him as charged, on the grounds that his actions and intentions amounted to "dealing with" and "procuring".

6. His reasons for this decision are set out at page three of his Statement of Findings where he says:

"The Court of Appeal in R. v. Diu Lap-nin (Criminal Appeal No. 1439 of 1983) has held that "dealing with" covers any activity which can be said to be related to, or connected with, the dangerous drug, including storage for subsequent disposal. Quite clearly, shifting drug from one area to another is true sense trafficking. Equally, a drug addict, smarting with knowledge of the law of economics, buying larger quantity for cheaper price or stocking up in case of short supply is a merchandiser and plainly trafficking.

Even if the stock is not kept in anticipation of short supply but to reduce the risk of arrest incurred by multiple buying rrips, to maintain possession of the stock comes within procuring, i.e. to obtain by care and effort. Seethe Shorter Oxford Dictionary. The addict has possession for the purpose of enabling him to get to the drug under safe conditions in future."

S. 2 of the Dangerous Drugs Ordinance provides that: “‘trafficking’, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, and “traffic in a dangerous drug” shall be construed accordingly.”

In R. v. Diu Lap-nin[1] Sir Denys Roberts C.J. said at p. 8:-

"It was further argued that, if a person does no more than store goods in his premises, he is not in possession for the purposes of 'trafficking', although it was conceded that if the storekeeper was knowingly keeping the drugs for someone else to sell, he would be taking part in unlawful trafficking.

As a matter of interpretation, the phrase "dealing with the dangerous drug" is sufficient, in our view, to cover any activity which can be said to be related to, or connected with, the dangerous drug, including storage for subsequent disposal.

So far as the facts are concerned, any defendant who knows, as this defendant is presumed to have known, of the presence in premises, of which he was the principal tenant, of a huge quantity of dangerous drugs, must have realized that his premises were being used to store drugs which were destined for sale and distribution in the Hong Kong market and must have thereby given his assistance to the trafficking of them."

7. The magistrate has, with respect, misinterpreted this passage. Storage can never amount to trafficking if the drugs are to be consumed by the storer and no one else.

8. The appellant had certainly procured the drugs when he bought them, but he was not charged with procuring them. He was not in possession of them for the purpose of 'unlawfully procuring' them.

9. Were the magistrate's contention correct, it would be almost impossible to rebut the presumption in S. 46, except in the sort of example he gives, where a defendant in his court had been arrested while taking his dying father's opium and pipe to a refuse collection point.

10. The appeal is allowed and the appellant convicted of simple possession of dangerous drugs, contrary to S. 8 of the Ordinance.

(Note: A Drug Addition Treatment Centre report having indicated that the appellant was unsuitable for detention, he was subsequently sentenced to six months imprisonment.)

Mr A. A. Bruce, Senior Crown Counsel, for Respondent

Mr R. Murray, instructed by D.L.A., for appellant

[1]  Crim. App. No. 1439/83