THE QUEEN v. MANG KWOK HUNG

IN THE COURT OF APPEAL

No 534 of 1997

(Criminal)

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J U D G M E N T

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Kempster, J.A. :

1. On 16th October 1987 in the District Court Yang Kwok HUNG pleaded "guilty" to a charge of possessing apparatus fit and intended for the injection of a dangerous drug and "not guilty" to a charge of possessing 54.84 grammes of a mixture containing heroin for the purpose of unlawful trafficking. After trial he was convicted by Judge Chua of the latter offence. He seeks leave to appeal against that conviction.

2. Having regard to the interesting points canvassed on his behalf by Mr. Cunningham we are disposed to grant Mang's application and to treat this as the bearing of the appeal.

3. The grounds of appeal are that the judge pave herself an erroneous direction as to the law relating to presumption of possession of dangerous drugs at the close of the prosecution case but for which the two co-accused would or should have been found to have had no case to answer and, therefore, would not, as they did, have felt constrained to give evidence which, if believed, exculpated them and, to some degree at least, implicated the appellant.

4. That the judge erred in suggesting that a presumption of possession of dangerous drugs arose from presence in the premises where the drugs were found she herself conceded at a later stage in the trial. But he that as it may, the evidence given by the co-accused and the appellant, represented by the same solicitor, was, it is conceded, admissible. Further, it is not suggested that the judge had any discretion to exclude it.

5. Certainly it would appear that, quite apart from the presumptions of law arising by reasons of the terms of Section 48 of the Dangerous Drugs Ordinance, the judge relied on admissions of addiction to find that all three had been involved in the self-administration of dangerous drugs in the material premises. While possession was not in issue as regards the appellant, who gave evidence that the drugs were required for its own use over a period of month when he was to he employed afloat having been given a substantial advance of wages, "a fishy story", in the judge's estimation, intent to traffick was and the gratuitous provision of drugs to friends would constitute trafficking.

6. Having rejected the appellant's evidence, we are satisfied that Judge Chua would quite apart from the evidence of the co-accused, have found he had failed to discharge the presumption which arose by reason of his admitted possession of the quantity of dangerous drugs in question. Even if we are wrong about this, however, there are no grounds for finding that the conviction of the appellant was thereby rendered unsafe or unsatisfactory. The appeal must be dismissed accordingly.

7. In relation to the alternative application, still on the record, for leave to appeal against sentence we are given to understand that Mang Kwok Hung wishes to abandon it. That application is dismissed.