R. v. SHAM YIM TONG

IN THE COURT OF APPEAL

1995, No. 208
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced two counts one of trafficking in a dangerous drug and one of possession of a dangerous drug.

2. The trafficking count particularised that he on 8 November 1993 at Room 706, Block 13, Pak Tin Estate, Shek Kip Mei, unlawfully trafficked in 91.71 grammes of a mixture containing 40.61 grammes of salts of esters of morphine.

3. The possession count particularied that outside that Room 706, he was found on the same day, in possession of 4.96 grammes of a mixture containing 2.3 grammes of salts of esters of morphine.

4. He pleaded not guilty and was after trial before Judge McMahon in the District Court found guilty on both counts. He now applies for leave to appeal against that conviction.

5. It was the Crown case that he was approached by two police officers who were part of a police party observing the vicinity of the 7/F of Block 13, Pak Tin Estate. Immediately after he was stopped the police party rushed into the residence and the drugs, the subject to the trafficking charge, were found in his room. The other drugs had been found on his person immediately after he was stopped and searched. Significantly also in the room and on the top of a bed containing the drugs a scale and some small plastic bags were found.

6. It was the defence, and this came in part from his father, that the small plastic bags had been in the sitting-room and that they had been used to contain bird seeds. He gave evidence that he used the scale to weigh drugs which he purchased for his own consumption. There is no issue here about the amount of drugs involved nor the possession of them by the applicant. The issue was whether or not they were for trafficking.

7. The trial judge, after an exhautive examination of the evidence, was satisfied as follows:

"In coming to my conclusions I have considered carefully the defence case that, for some unknown reason the police gave false evidence as to who in fact went into Room 706 with PW3 initially and found the drugs exhibited.

On the evidence I find no merit in the defence case. I accepted the police evidence in this regard.

I gave due weight to the defendant's immediate reaction to the effect that the drugs in the 7-11 bag were for his own consumption, but at the end of the day, on the evidence reject that contention.

So far as the 1st charge is concerned I am satisfied beyond reasonable doubt that at the address specified on the 8th November 1993 the defendant trafficked in the particularised drugs and that he possessed them for the purpose of sale."

He went on to state that he was satisfied also that the applicant had been in possession of the smaller quantity of drugs outside the room.

8. The applicant has advanced nothing in this application other than to say, as he did to the trial judge, that he had the drugs in his possession for his own consumption. He has suggested nothing that in any way supported his contention that the conviction was either unsafe or unsatisfactory.

9. The application must be refused.