Chan Shui v. The Queen

CACC000007/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.7 OF 1969

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Coram: Blair-Kerr, J., Mills-Owens, J. & Huggins, J.

Date of Judgment: 6 March 1969

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JUDGMENT

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Huggins,J:

1. The appellant appeals against a sentence of 4 months' imprisonment passed by a learned magistrate for an offence of unlawful possession of dangerous drugs. The charge was amended so that the particulars alleged possession of "traces of diacetylmorphine hydrochloride". The learned magistrate referred to the decision of the English Court of Appeal in Reg. v. Worsell⁽¹⁾ but preferred to rely on two Canadian cases. He advised the appellant to appeal so that this court might consider the propriety of the conviction. The appellant chose to appeal only against sentence but we thought it right not to decide his appeal until we had decided the wider issue, which was before the court in another case. In Reg. v. Yu Kwun⁽²⁾ we have today given our reasons for thinking that while the two Canadian cases are not directly in point a charge of unlawful possession of traces of a drug can properly be laid in Hong Kong.

2. Originally the appellant indicated his wish to plead guilty to the charge but the magistrate entered a plea of not guilty so as not to prejudice the appellant should it be held by this court that an accused could not be convicted on a charge alleging unlawful possession of only traces of dangerous drugs. The appellant did not give evidence or seek to challenge the evidence led against him. He had been convicted on seven previous occasions of unlawful possession of diacetylmorphine hydrochloride and on one of them had apparently been conditionally discharged for 12 months. He was convicted again after only 6 months. Before us the appellant has contended that he originally wished to plead guilty because he had so many previous convictions he thought the magistrate would not believe him: he said the tinfoil and cigarette butt in which the drug was found did not belong to him. The learned magistrate believed the evidence that the tinfoil was discovered in the appellant's clenched fist, and the cigarette butt lying on the bed upon which the appellant was sitting.

3. We think a sentence of 4 months' imprisonment for an offence of this kind to be wrong in principle in any case. A fortiori it is wrong where, as here, the convicted person has a record of similar offences and has already served sentences of imprisonment of up to 6 months which have proved ineffective. We think the right sentence would have been one of 9 months' imprisonment, which would have meant a minimum of 6 months' detention, a term affording some reasonable prospect of successful treatment of his addiction. In order to allow the same length of time for treatment now we would have to increase the sentence to one of 11 or 12 months' imprisonment, for he was originally sentenced on 27th December 1968. From a purely legal point of view it might be more logical to increase the sentence, but we think that that might leave the appellant with a not altogether unjustifiable sense of grievance. In the circumstanc and not without hesitation, we have decided to allow the appeal and substitute such sentence as will permit his release today. If he is convicted again he may find himself sentenced to an indefinite order of detention and treatment under s.4 of the Drug Addiction Treatment Centres Ordinance, 1968.

6th March, 1969.

Representation:

...(illegible) C.C. for Crown/Respondent.

Appellant in person.

Written Judgment handed down.

(1) 1968 The Times December 14th

(2) Criminal Appeal 785 of 1968