THE QUEEN v. CHEUNG KUNG YU

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J U D G M E N T

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Clough, J.A.:

1. The applicant who appears in person seeks leave to appeal against his conviction after a trial by His Honour Judge Wesley Wong in the District Court on two charges of possession of a dangerous drug for the purpose of unlawful trafficking therein contrary to section 7 of the Dangerous Drugs Ordinance (Cap. 134).

2. The applicant is 61 and a drug addict. He admitted that drugs (which included tablets which were the subject of two other charges) found by a police party at his premises in Kwun Tong on the night of the 15th October 1988 belonged to him. He pleaded guilty to possession of those drugs but in respect of the two trafficking charges (which related to quantities of 29.71 and 27.29 grammes respectively of a mixture containing 2.06 and 2.01 grammes respectively of salts of esters of morphine) he gave evidence to rebut the presumption for the purpose of trafficking which arose under section 46 of the Ordinance. His defence was that the drugs were in his possession for his own consumption.

3. The quantity of 29.71 grammes of drug which was the subject of one charge had been found in the applicant's bedroom. The quantity of 27.29 grammes which was the subject of the other charge had been found in the staircase outside his premises.

4. The applicant's evidence was to the effect that he had been a heroin addict for over 20 years. He spent about $2,000 per month on dangerous drugs which he purchased every 15 days from a particular supplier. He said that the drugs found in his bedroom and in the staircase had been acquired by him at about 7 a.m. of the day in question in the form of eight packets.

5. According to the applicant he had put four packets comprising 29 odd grammes of the newly supplied drug in a phial in his bedroom, and in the staircase he had put three packets of the drug and also a phial containing the contents of a fourth packet and an amount left over from a previous occasion.

6. His evidence was that he had intended to go to China on the 17th October 1988 for a week, taking with him the drugs in the phial in his bedroom. As to the drugs found in the staircase, he said that be intended to consume the quantity found in the phial that evening and during the time before he went to China. He said that the remaining three packets in the staircase had been intended by him to be smoked when he returned from China.

7. The judge who saw and heard the applicant rejected his evidence as untruthful. He added that he found the applicant's explanation, that the drugs he intended to consume at home were kept outside the premises whereas the drugs he intended to take to China were kept ins de the premises to be unconvincing and illogical. The judge went on to refer to a number of inconsistencies in the applicant's evidence concerning the drugs. He concluded that the applicant's evidence was unreliable and convicted him on the basis that he had failed to rebut the presumption which arose under section 46 in the case of both the trafficking charges.

8. In his grounds in support of his application the applicant seeks to explain that one of the inconsistencies in his evidence, concerning the actual amount of the drugs in tire staircase and whether he had consumed all his previous stocks, was the result of his poor memory which led him to give wrong answers to the judge's questions and thereby cause the judge to disbelieve him.

9. Today he sought to develop these grounds by saying for the first time that the drugs in the staircase were for his god daughter's consumption while he was in China. His story now is that originally all the drugs were kept in the staircase, but some were put in his bedroom to be taken to China. He says that he simply forgot to put them back into the staircase. This is a different story from his evidence at his trial. He claims that he forgot to tell the judge all this.

10. In our judgment there is no substance in these grounds which are to some extent based on matters which were not raised in his evidence at his trial. The judge demonstrated in his Reasons for Verdict that he had carefully assessed the credibility of the applicant both by his demeanour and the nature of his evidence as a whole. We can find no fault or misdirection in the manner in which he performed this judicial function.

11. The application is accordingly dismissed.