The Queen v. Lau Shui Leung

IN TEE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 868 OF 1987

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BETWEEN

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Coram : Hon. Bewley, J. in Court

Date of hearing : 31st December 1987

Date of delivery of judgment : 31st December 1987

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JUDGMENT

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1. The appellant was convicted of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap. 134, and was sentenced to 18 months imprisonment. He is also serving a sentence of 15 months imprisonment in respect of an offence committed while on bail for this offence.

2. This is another appeal from Mr. Z.E. Li at Fanling Magistrates Court. The appellant was charged with possession of dangerous drugs for the purpose of unlawful trafficking. He admitted possession but claimed the heroin was for his own consumption. He admitted the facts of the prosecution case, which established that eight small packets of heroin, weighing a total of 4.92 grammes, were found on his person and that he had told the arresting officer that he had bought them for his own consumption.

3. Before the appellant gave evidence, in an attempt to rebut the presumption, the magistrate took it upon himself, in spite of the objection of defence counsel, to amend the charge to one of trafficking. He did so on the basis that “buying packets of drug in number and carrying them in the street is prima facie evidence of dealing in drugs.”

4. That simply is not so. As I said in Magistracy Appeals Nos. 869/87 and 935/87, the magistrate has taken a wrong view of the judgment in R. v. Diu Lap Nin[1].

5. Had the magistrate believed the appellant's evidence, he should, and I daresay would, have convicted him of simple possession. However he disbelieved him. Although the appellant established that he could afford that quantity of heroin, his reasons for dividing it into eight packets were unconvincing and the magistrate rightly rejected them.

6. In those circumstances he should have convicted the appellant of the offence with which he was originally charged.

7. The appeal against conviction is allowed. The conviction for trafficking is quashed and a conviction for possession of dangerous drugs for the purpose of unlawful trafficking substituted therefor.

8. The quantity is similar to that in case No. FC 5655, in which he was sentenced to 15 months imprisonment. I therefore reduce the sentence in this case to 15 months also, to run from the expiration of the sentence now being served. To that extent the appeal against sentence is also allowed.

Miss Mary Sin, Crown Counsel, for Respondent.

Miss B. Chainrai (assigned by D.L.A.) for Appellant.

[1]  Criminal Appeal No. 1439/83