The Queen v. Lee Kin-kwok

CACC000802/1983

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 802 of 1983

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Between

Coram: Hon. Penlington, J. in Court

Date: 21st July, 1983

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JUDGMENT

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Conviction

1. This is an appeal against convictions and sentence for keeping a divan in which opium was sold for smoking therein, and also for trafficking in dangerous drugs.

2. The magistrate allowed to be produced a statement made by the appellant at the scene and past recorded at the Police Station some 3 hours later. Most of it was before he was cautioned and clearly the caution was administered for too late. However the magistrate said he regarded that earlier part as unreliable and he put no weight on it. If that was so I think Mr. Macrae is right in saying that it must all be unreliable. The caution only goes to the question of whether it was voluntary, not its reliability. However I also agree with Mr. Dale for the Crown that apart from that statement there was substantial evidence which justified the magistrate coming to the conclusion that the accused did sell opium for smoking at these premises.

3. There was no doubt it was deemed to be a divan as soon as the appellant pleaded guilty to the possession of equipment found in the premises and I am satisfied the quantity involved, not only opium but also the equipment was quite sufficient for the magistrate to find that in fact the accused did sell pium in the divan and therefore he was in possession of the opium for the purpose of trafficking. The presumption clearly arises and the appellant did not give evidence on the general issue. I am satisfied that the presumption was not rebutted. I am satisfied that the convictions on both the A and B charges are perfectly proper and the appeal against conviction on each of those charges must be dismissed.

Sentence

4. The accused clearly is an addict and I have no doubt that apart from selling opium to other smokers in his divan he patronized himself. He has however no previous convictions and I take those two factors into account. Prior to the case of CHAN Chi-ming I think the tariff for the amount involved in this case would be about 15 months' imprisonment. There has undoubtedly been a hardening of sentences in relation to drug offences but mainly in relation to heroin which is the main problem.

5. As far as I am aware there is no indication that smoking opium has increased. Even bearing in mind CHAN Chi-ming I think two years on the second charge was excessive. While I did not wish to tinker with sentences I think the sentence on the B charge of trafficking should be reduced from 2 years to 18 months' imprisonment. The charges are the sentences on the A and C charges will remain and all sentences will be concurrent.

Representation:

R.J. Dale, Counsel for the Crown.

Andrew Macrae (Laurence Pang & Co.) for the Appellant.