R. v. KONG LEUNG HUNG

IN THE COURT OF APPEAL

1996, No 178
(Criminal)

----------------------

J U D G M E N T

-----------------------

Bokhary, J.A.:

1. This is an application for leave to appeal against conviction.

2. The applicant, a man in his late 40's, faced two counts, each of trafficking in dangerous drugs.

3. He was tried before Saied, J. and a jury.

4. On March 20 this year, the jury returned their verdicts. They acquitted on the 1st count by a majority of 5 : 2, and convicted on the 2nd count by the same majority.

5. It is contended on the applicant's behalf that the conviction on the 2nd count is inconsistent with the acquittal on the 1st count.

6. Shortly stated, the prosecution's case was: that the police found the dangerous drugs the subject-matter of the 1st count on the applicant in the course of a street search; and that they found the dangerous drugs subject-matter of the 2nd count in his home where he was escorted there following the street search.

7. The 1st count drugs consisted of 40.62 gms of a mixture containing 7.46 gms of heroin hydrochloride, while the 2nd count drugs consisted of 489.98 gms of a mixture containing 89.14 gms of heroin hydrochloride.

8. The applicant denied trafficking on this basis.

9. As far as the smaller quantity of drugs are concerned, he said that they were for his own consumption; and as far as the larger quantity of drugs are concerned, he said that he never had them.

10. The jury were perfectly entitled to take the view on the evidence that he had both quantities of drugs in his possession, but that there was some doubt as to whether the smaller quantity was for trafficking while there was no such doubt in relation to the larger quantity.

11. Why then, it might be asked, did the jury not convict on the 1st count of the alternative offence of simple possession? The answer is that, for no reason which we can discern, such alternative was not left to them.

12. There is nothing in this application and it is dismissed.