HKSAR v. Ng Wah Pak

HCMA 106/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 106 OF 2012

(ON APPEAL FROM ESCC 4240 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 25 April 2012

Date of Judgment: 25 April 2012

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J U D G M E N T

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1.The Appellant was tried in the Magistrates’ Court on a charge of unlawful trafficking in dangerous drugs.

2.As particularised in the charge, the dangerous drugs consisted of “1 plastic bag containing 7 packets (consisting of plastic wrappings) containing a total of 14 tablets containing 0.18 grammes of midazolam, 1 plastic bag containing 13 packets (consisting of plastic wrappings) containing a total of 2.42 grammes of a mixture containing 1.41 grammes of heroin hydrochloride (a salt of heroin), 22 packets (consisting of plastic wrappings) containing a total of 22 tablets containing 0.28 grammes of midazolam and 52 packets (consisting of plastic wrappings) containing a total of 4.76 grammes of a mixture containing 2.78 grammes of heroin hydrochloride (a salt of heroin)”.

3.It was an admitted fact at the trial that these dangerous drugs were in the Appellant’s possession when he was arrested in a playground. Following his arrest and under caution, he said that the dangerous drugs were for his own consumption.  The Magistrate convicted him of trafficking as charged and sentenced him to 30 months’ imprisonment.  He now appeals against conviction and sentence.

4.As far as his appeal against conviction is concerned, he is represented by counsel assigned by the Legal Aid Department. As far as his appeal against sentence is concerned, he is representing himself.  The perfected grounds of appeal against conviction filed on his behalf read as follows:

“(1) The learned Deputy Magistrate erred in law in failing to hold that there was insufficient evidence in prosecution’s case to prove that the Appellant was trafficking in dangerous drugs. In the premises, the learned Deputy Magistrate erred in law in failing to hold that the prosecution has not proved beyond reasonable doubt that the Appellant has committed trafficking of dangerous drugs.

(2) The learned Deputy Magistrate erred in law in holding that an irresistible inference could be drawn from the available evidence that the Appellant possessed the dangerous drugs for trafficking purpose.

(3)     By reason of the foregoing, the Appellant’s conviction is unsafe and unsatisfactory.”

5.Trafficking in dangerous drugs includes possessing them for the purpose of trafficking.  The Magistrate considered it an irresistible influence that the Appellant had a substantial part of the dangerous drugs concerned in his possession for the purpose of trafficking in them.

6.Having regard to all the circumstances, including the way in which these dangerous drugs were packaged, it was open to the Magistrate to draw that inference and I detect no error in how he went about drawing it.

7.Accordingly, the appeal against conviction is dismissed.

8.The Magistrate arrived at a sentence of 30 months’ imprisonment by taking a starting point of 4 years and 6 months, reducing it to 3 years so as to bring it within the jurisdiction of the Magistrates’ Court and then giving the Appellant 6 months’ discount to reflect the portion of the dangerous drugs which were for his own consumption.

9.In my view, the sentence at which the Magistrate arrived as a result cannot be interfered with.

10.Accordingly, the appeal against sentence too is dismissed.

Ms Debora Poon, instructed by Jack Fong & Co (assigned by DLA), for the appellant, on appeal against conviction

The appellant appeared in person on appeal against sentence

Mr Franco Kuan, of the Department of Justice, for the respondent