R. v. LAW CHI-YIN

IN THE COURT OF APPEAL

1995, No. 279

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court): The applicant was convicted of trafficking of a mixture containing 12.8 grammes of heroin by His Honour Judge Hawks in the District Court on 27 March 1995. He was sentenced to 4 years imprisonment. We have given the applicant leave to abandon his application for leave against sentence. By his counsel Mr Chan, he pursues an application for leave to appeal against the conviction.

The facts

2. The police went to the applicant's house in Sha Tau Kok after 11 pm on 7 February 1994. The house was surrounded apparently by a wire entanglement and a 7-foot high gate. When challenged to open the gate and let the police in, he rushed into a room and locked the door. When he was followed he threw some drugs out of the window. He was chased by the police out of that room into another. He tried to throw another packet of drugs into a toilet. Eventually, he was arrested.

3. There was found in the premises in the possession of the applicant a number of items. They included things which one would expect an addict to have, but they also included a number of other articles important in this case. There were a number of packets containing heroin, a blender which had traces of heroin and his fingerprints upon it and items suitable for packaging of the drugs. Most of these had upon them traces of heroin.

4. The result was that there was an overwhelming inference that the person in possession of those items have them and the drugs there for trafficking unless there was some explanation. At trial, the applicant gave evidence and sought to give an innocent explanation.

The defence and submissions on the application

5. The defence is that he had a relatively small quantity of drugs. They were purely for his own consumption. He gave evidence and told the judge that he had bought the drugs from an unknown person for $4,000 in two solid pieces so that he had to use the blender to break it down. He placed the drugs into the packets so he could more easily monitor his daily consumption of about 3 packets a day. The drugs would last about one month. On his arrest he admitted under caution that all the items which were seized were his and claimed from the outset that the drugs were for his own consumption.

6. Having heard the evidence in the case, the judge rejected the applicant's evidence. He did not believe the applicant when he told him that the $4,000 worth of drugs had been purchased from a man he did not know. He did not believe that it was merely a coincidence that he had the necessary equipment - the blender - for breaking down the dangerous drugs nor that he was packaging the dangerous drugs in order to control and monitor his own consumption. Further, he did not believe the applicant when he said that he would not sell or supply the dangerous drugs to others. In those circumstances, he rejected the applicant's explanation,

7. Mr Chan further submits that it was not possible for the judge to say that the only inference open to him was to find that the drugs were held by the applicant for trafficking. We simply cannot agree. This was an overwhelming case. Once the judge had rejected the applicant's evidence, there were plainly grounds upon which it was open to him to infer beyond reasonable doubt that the drugs were held for the purpose of trafficking.

8. In those circumstances this application is refused.