THE QUEEN v. NGAI CHI KEUNG

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, NGAI Chi-keung was convicted after trial in the District Court of possession, for the purpose of trafficking, of a quantity of 93.83 grammes of a mixture containing 20.49 grammes of salts of esters of morphine. There was short and simple evidence. He was arrested while on his way to China at the Lo Wu Control Point. He had then in his possession the packet which contained the dangerous drug and which was revealed upon search at that place.

2. The quantum of the drug involved inevitably raised the presumptions under Section 46 of the Dangerous Drugs Ordinance.

3. The applicant gave evidence in answer to the charge and he said that he had been on his way to China for a visit which was to take eight days. He confessed that he was a confirmed drug addict and he said that the drugs found in his possession were for his personal consumption only.

4. This explanation was in fact dealt with by the trial judge but prior to dealing with that explanation the judge dealt with a submission which had been made, somewhat unfortunately, by counsel then appearing for the Crown. That submission appears to have been to the effect that because the applicant was on his way to China he was therefore in possession of the drugs by way of exporting them from the Colony. That submission became the subject of debate in relation to what constituted export and the District Judge had no difficulty in disposing of the suggestion by the defence that the circumstance did not dislcose export.

5. He went on, however, to consider the contention put forward by counsel which was to the effect that once it was shown that the drugs were in process of being exported that inevitably meant that they were in the possession of the applicant for the purpose of trafficking.

6. Dealing with that curious submission the judge said:

"Therefore when the accused had the drug in his possession and the purpose of which was to take the drug out from Hong Kong he had it for the purpose of trafficking no matter whether he had it for his own consumption or otherwise. The presumption in Section 46 arises only in relation with the quantity involved whilst in carrying drug out of Hong Kong, it involved the movement of the drug itself in relation to export. Therefore I find that there is no defence by raising the rebuttal in Section 46 when the offence was in connection with the carrying the drug out of Hong Kong. I am satisfied beyond reasonable doubt on the fact admitted by the accused that the Crown has proved the case and the accused is convicted as charged."

7. Mr. Dykes for the Crown on this application fairly concedes that that is a grave and serious misdirection; He suggests though, if I may say so, somewhat faintly, that perhaps the judge dealing with the actual explanation given by the applicant may mend the matter.

8. We cannot take that view. Whatever may be said of the reasons given for dismissing the explanation we could not be satisfied that the judge, in expressing himself so firmly and explicitly as he had already done in relation to the guilt of the accused, can safely be assumed to have given proper attention to the nature of the explanation advanced. For this reason we think that the application must succeed. We treat it as the hearing of the appeal, we allow the appeal, we quash the conviction and set aside the sentence.

9. In the circumstances however, this being wholly a mistake in law on the part of the trial judge, we think the proper course is to order that there should be a retrial of the charge and we so order.