THE QUEEN v. SHUI KOK-WAH

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J U D G M E T

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Silke, J.A.:

1. SHUI Kok-wah was tried upon two counts on the charge sheet in the District Court.

2. Both counts related to the possession of dangerous drugs for the purpose of unlawful trafficking.

3. Count one alleged the possession of 9.47 grammes of a mixture containing 1.43 grammes of salts of esters of morphine.

4. Count two alleged the possession of 45.04 grammes of a mixture containing 6.78 grammes of salts of esters of morphine at Block A, Flat 4, 11th floor, Mui Lam Street.

5. He was acquitted on the second count and convicted on the first. He was sentenced to three years' imprisonment.

6. He now seeks leave to appeal against both his conviction and his sentence.

7. The physical possession of the drugs was not denied. It was the applicant's case from the outset that he had the single package of the mixture for his own consumption.

8. The quantity raised the presumption of trafficking.

9. The applicant had been stopped and searched as he came out from a pedestrian subway and the package was found in his hand.

10. In his Reasons for Verdict the trial judge said:

"The package in his hand was of a size that could be appropriate for purchase by an addict. That was in his favour. His combined admission and allegation when the drugs were first found also tend to go in his favour. As against that his demeanour and the nature of his evidence led me to feel strongly that he was untruthful in his evidence. He may well be an addict but traffickers are often addicts using the profits to buy drugs for themselves. I was not satisfied even on the balance of probabilities that the presumption should not be apblied. I applied it and on that basis found the first charge proved beyond reasonable doubt."

11. In the light of these findings it is not for this Court to interfere with the conviction. We are not a court of trial.

12. The application for leave to appeal against conviction is refused.

Sentence

13. We note the contents of the probation report which the trial judge had before him and we have listened to that which the applicant had said to us today. While the sentence of three years upon a conviction for possession for the purpose of unlawful trafficking is in no way wrong in principle, we think, in the particular circumstances of this applicant, that society might well be protected from his further depredations if we were to give him one more chance - the chance of cure.

14. There was recommendation before the trial judge that he was suitable for admission to the Drug Addiction Treatment Centre. We are prepared to act upon that.

15. Therefore the application for leave to appeal against sentence is granted, the hearing is treated as the hearing of the appeal and the appeal is allowed to the extent that we set aside the sentence of three years' imprisonment and substitute therefor a Drug Addiction Treatment Centre Order.

16. This is not the first such order made in respect of this applicant.

17. Acting under the provisions of section 4(4) of the Drug Addiction Treatment Centres Ordinance, Cap. 244, which reads:

"When a court makes a detention order, no conviction shall be recorded against the person in respect of whom the order is made unless, in the opinion of the court, the circumstances of the offence so warrant and the court orders accordingly."

and the circumstances of the offence here being such we direct that a conviction is to be recorded.