THE QUEEN v. CHEUNG KAM MING

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J U D G M E N T

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Silke, V.-P.:

1. The Applicant, Cheung Kam Ming, was convicted of two offences after trial before His Honour Judge Wally Yeung. The first was being in possession of a dangerous drug for the purpose of unlawful trafficking and the second: possession of apparatus fit and intended for the injecting of a dangerous drug.

2. The first charge related to a quantity of dangerous drug of a 33.18 grammes mixture containing 2.15 grammes of salts of esters of morphine.

3. On both of those charges there was a second named defendant Lam Man Fai jointly charged with the Applicant. Upon conviction the Applicant was sentenced to a period of 4½years' imprisonment in respect of possession of the dangerous drug for unlawful trafficking and a fine of $1,500 was imposed in respect of the apparatus offence. He now seeks leave to appeal both against his conviction and, if necessary, sentence.

4. At the hearing of the application today Mr. Hoosen informed us that he appeared for the Applicant in respect of sentence only on the instructions of the Director of Legal Aid. The Applicant then informed us that he wished the matter of the conviction to be adjourned to allow him to obtain private legal representation. He had been told on 13th April of this year that he would not be given a certificate by the Director of Legal Aid in respect of conviction, that certificate having been refused on 10th April. The certificate in respect of sentence was granted on that same day. He informed us that he had approached his family and they were apparently attempting to contact the solicitors who represented him at trial. There is no representation from them in this Court today. We refused the application for the adjournment and proceeded to hear the Applicant in person in relation to his appeal against conviction.

5. He has placed before us homemade grounds but he did not wish to address us in respect of any of them.

6. The evidence before the trial judge showed that on 10th July 1988 at about 10:15 p.m. a police party was keeping the premises at Nam Kiu Mansion, Flat 2L on the second floor, under observation. They saw two persons return to that flat. One was the Applicant and the other was the 2nd defendant at trial. They closed the iron grill leaving it unlocked and closed the wooden door which was then locked. The police approached the premises demanded entrance but were unable to obtain it. They broke down the wooden door. When they entered the flat they found both the defendants in the toilet. There were in the toilet bowl traces of dangerous drugs, swabs having been subsequently taken of the contents. The premises itself was searched and nine packets of dangerous drugs, twelve syringes, one spoon and a screwdriver together with some plastic boxes, some of which articles had traces of dangerous drugs, were discovered. The Applicant had the keys of the premises upon him.

7. It was the Applicant's defence that he had touched the drugs, for a finger print of his was found on one of the packets, when they were presented to him and he was asked "What are these". He denied the drugs were his but accepted that he was the tenant of the premises. He had lent them to the 2nd defendant because the 2nd defendant was without premises in which to sleep. He did not open the door immediately after the persons outside requested it because he had a watermelon with him when he entered the flat and was going to the toilet to leave it there.

8. The 2nd defendant also gave evidence at trial. This was in total contrast to that of the Applicant. He said that he had gone to the premises as he had done on prior occasions for the purposes of smoking dangerous drugs and that he paid the Applicant for the privilege. He had never been lent the premises by the Applicant and had met the Applicant outside that night and was going back there to smoke.

9. The trial judge, as he was entitled to do having considered the evidence and the manner in which it was given and the demeanour of those who gave it, did not accept the evidence given by the Applicant. He did place reliance on the evidence given by the 2nd defendant. He bore in mind the Applicant's explanation of the finger print. He did not believe that the Applicant had lent the premises before the incident. There are findings which the Applicant complains alleging the judge to have been wrong. It is clear that the trial judge accepted the drugs belonged to the Applicant not only because the Applicant was the tenant but because he had the keys of the premises and from the evidence of the 2nd defendant. He was entitled on the evidence before him to come to the conclusion he did and we find nothing that causes us any anxiety in relation to those conclusions. The application for leave to appeal against conviction was therefore dismissed.

Sentence

10. In respect of sentence, it is Mr. Hoosen's point that the tariff in Chan Chi Ming [1979] H.K.L.R. 491 for a quantity of this nature, 33.18 grammes of a mixture, is set at between three to five years; that this quantity is at the lower end of that scale while the sentence passed is at the higher end. He suggests that the trial judge sentenced the Applicant for a greater quantity than that which appears in the charge. This has reference to the trial judge's recital of the fact that the Applicant was in the toilet and traces of drugs were found in the toilet bowl.

11. The trial judge was entitled to consider the overall facts of this matter and the background to the offence. The tariffs in Chan Chi Ming are guide lines, aggravating factors can increase them. We do not consider that the trial judge was sentencing in respect of a higher quantity than appeared in the charge. He clearly had in mind the evidence given by the 2nd defendant and the fact of a disposal of drugs shown by the traces in the toilet bowl.

12. Whilst the sentence is on the high side we do not consider it is one which warrants our interference. The application for leave to appeal against sentence is also refused.