ATTORNEY GENERAL v. TO KWONG CHUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 525 of 1989

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BETWEEN

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JUDGMENT

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1. On 28th September, 1988 the Respondent whilst passing through the Customs Departure Hall at the Lo Wu Railway Terminal in the course of a journey to China was found to have in his possession 43.07 grammes of a mixture containing 2.38 grammes of salts of esters of morphine.

2. He was arrested, charged with trafficking in the drug and brought before the Magistrates Court. He admitted possession and his assertion that his intention was to consume the drugs in China was not challenged by the Prosecution.

3. The learned magistrate held that the facts did not disclose the offence of trafficking under the Dangerous Drugs Ordinance ("the Ordinance"), found him not guilty as charged but guilty of possession of a dangerous drugs for the purpose of trafficking contrary to section 7 of the Ordinance.

4. The Attorney General, in this Appeal by way of Case Stated, does not seek to upset that conviction but asks that the second question posed by the learned magistrate be given an affirmative answer. That question asks, in effect, whether the learned magistrate was in error, as a matter of law, in holding that the Respondent was not guilty of trafficking in dangerous drugs. If the answer to that question is "yes" there is no need to consider the other questions.

5. The question must be answered affirmatively in view of the majority decision of the Court of Appeal in R. v. LAU Chi-sing [1987] HKLR 703. The facts in that case are indistinguishable from those here. Lau was charged with trafficking after he was found in possession of a mixture containing a quantity of salts of esters of morphine at the immigration point at Lo Wu on his way to China. It was found as a fact that he intended to take the drugs out of Hong Kong to China where he intended to consume them. In the lower court it was held that this did not amount to trafficking. On appeal by the Attorney-General by way of case-stated the question posed by the trial judge was :

"Whether I was correct in law in ruling that a person taking drugs out of Hong Kong with him for his own consumption is not trafficking in drugs within the meaning of .... [the Ordinance]?"

6. Silke, J.A., who delivered the majority judgment, said (at p. 705) :

"The issue here is whether a person taking dangerous drugs out of Hong Kong may, within the definitions contained in the Ordinance, be convicted of trafficking..........

Section 2 of the ordinance defines 'export' as meaning:

7. After dealing with submissions made by counsel he then went on to say (at p. 708) :

"The Ordinance is intended to deal with all offences concerning dangerous drugs. If a person takes or causes to be taken dangerous drugs out of Hong Kong then he is exporting them and it matters not that he intends to use the unlawful substance for his own consumption once he leaves the Territory ....... It follows therefore that a conviction for exporting (sic, 'trafficking'?) should have been come to in this case ....."

8. The learned magistrate sought to distinguish LAU on the basis that the Respondent "had not crossed the border". But Lau had not crossed the border so the case is indistinguishable and the learned magistrate was bound by LAU.

9. The Appeal is allowed.