THE QUEEN v. LEE TSIU KIANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 947 OF 1987

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JUDGMENT

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1. The appellant was convicted of possession of dangerous drugs, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134 and was sentenced to 16 months imprisonment.

2. He admitted possession of 10 packets containing 2.70 grammes of heroin, but claimed it was for his own consumption. He admitted he was an addict and spent $1,800 per month, or $60 per day, on drugs. He slept rough under a flyover. His only other expenditure was on food. His income was from hawking fruit, sugar cane and tea, from which he derived $3,000 per month. When the appellant was arrested he had just bought the 10 packets of heroin, which would have lasted him two days.

3. In his judgment the magistrate said he disbelieved the defendant when he said he intended to consume all the heroin himself. He did not say why. Nor did he make a finding that the appellant's income and expenditure figures were untrue. If they were correct, clearly the appellant could have afforded to consume drugs at that rate. In those circumstances it would have been unreasonable, in the absence of other evidence, to hold that the presumption was not rebutted.

4. In his statement of findings, written nearly three months after the trial, the magistrate says :-

“I have recently returned from annual leave and, unfortunately, I cannot now recall the demeanour or conduct of the defendant in Court and I can only rely on what I noted at the end of the trial. In the circumstances it seems to me the appeals should probably be allowed and a conviction of Possession of Dangerous Drugs contrary to Section 8 of the Dangerous Drugs Ordinance, Cap. 134 be substituted.”

5. In the light of this admission, and the lack of reasons in his judgment for disbelieving the appellant, counsel for the crown does not seek to uphold the conviction oh the more serious charge.

6. The appeal against conviction is allowed and a conviction for simple possession, contrary to section 8 of the ordinance substituted.

7. The appellant also appeals against sentence. He is 58 and has 22 previous convictions, mostly for heroin offences. He has been twice to the Drug Addiction Treatment Centre.

8. The magistrate says he would have sentenced him to 10 months imprisonment had he convicted him on the lesser charge. Having regard to the quantity of heroin and the appellant's record, this is a proper sentence.

9. The appeal against sentence is allowed accordingly.