Wan Yee Wo v. The Queen
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CACC000062/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 62 OF 1970
----------------- Coram: Rigby, C.J. Date of Judgment: 25 February 1970 ----------------- JUDGMENT ----------------- 1. The appellant, aged 32, was convicted of the charge preferred against him of possession of dangerous drugs for the purposes of unlawful trafficking. 2. The brief facts of the case were that he was seen on the afternoon of the 18th December in a street behaving in a way that one of the police constables who saw him regarded as suspicious. The police constable approached him and searched him and found a purse in his pocket which, in turn, was found to contain 11 packets of what the constable believed to be dangerous drugs. Upon analysis that belief was confirmed and the drugs were found to consist of 3.9 grammes of esters of morphine in 11 packets. 3. The appellant, at the time of his arrest, said the drugs were his own and that he had them for his own personal consumption. He gave evidence at the trial in which he adhered to that statement, describing in some detail the circumstances under which he had bought the drugs and that they were, I repeat, wholly for his own consumption. He said that he had purchased them for $60 and he expected them to last him for a few days, bearing in mind the needs of his addiction. 4. The learned magistrate came to the conclusion that the appellant had not rebutted the presumption arising from the quantity of the drugs found and that the drugs were in his possession for the purposes of trafficking. It does seem to me that where the quantity of drugs is not such that it manifestly indicates trafficking, a court should be very careful before it rejects evidence tending to rebut that presumption. The only evidence that an accused person in such circumstances can really give is to assert that the purpose for which he bought the drugs was for his own consumption; and the lesser the quantity the more reasonable it might well appear to be that the story put forward by him is likely to be true. However, the learned magistrate came to the conclusion, and it was of course a matter for him, that upon the evidence before him the presumption had not been rebutted. I should myself have thought that this was clearly a borderline case; but there can be no grounds for my interfering with the decision of the magistrate in convicting the appellant of the charge as preferred. 5. Upon conviction the learned magistrate sentenced him to 12. months' imprisonment and he now appeals as against that sentence. The appellant has never been in trouble before and he says that he is a drug addict. He applied at the time before the learned magistrate to be sent to a drug addiction treatment centre, but the learned magistrate was not prepared to accede to that request. In view of the fact that the appellant has no previous convictions and that he has never been in trouble before, it does seem to me that this is a proper case where, if the authorities are prepared to accept him at a drug addiction treatment centre for treatment, that he should be given that chance. 6. I propose, therefore, to adjourn this case and to ascertain whether he is acceptable to a drug addiction treatment centre. I will adjourn it for 14 days. 7. I adjourned this case in order that I might receive information as to whether or not the appellant was suitable and acceptable for admission to a Drug Addiction Treatment Centre. I now have before me the report of the Commissioner of Prisons stating that the appellant is, in the opinion of the Medical Officer, a "drug dependant" and that he is suitable for admission to the Tai Lam Addiction Treatment Centre. However, the appellant now informs me that he is not a drug dependant and that he has no wish to go to the Tai Lam Addiction Treatment Centre. I have informed him that if, indeed, it is true - contrary to the opinion already expressed by the Medical Officer - that he is not a drug dependant, I have no doubt whatsoever that the authorities at the Treatment Centre will be only too glad to release him at the earliest possible opportunity. However, the appellant still maintains that he does not wish to go to the Tai Lam Addiction Treatment Centre and that he would prefer to go to prison. In those circumstances, bearing in mind the quantity of the drugs found in his possession - 11 packets - and the fact that he was convicted of possession of those drugs for the purposes of unlawful trafficking, I can see no reason to interfere with the sentence of 12 months' imprisonment that was passed upon him. 8. The appeal is accordingly dismissed. Representation: Appellant in person. Lucas, S.C.C. for Crown/Respondent. |