HKSAR v. NG YEUNG CHUNG

HCMA145/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 145 OF 1999

----------------------

-----------------------

-------------------------

J U D G M E N T

-------------------------

1. This is an appeal against conviction and sentence. The Appellant was convicted by a Magistrate of possession of dangerous drugs, contrary to s 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2. One police officer, PC49171, gave evidence. He told the Magistrate that on 19 October 1998, at about 6.53 pm, he arrived at the lift lobby of the 26th Floor, Lung Shun House, Lower Wong Tai Sin Estate. There he saw a colleague of his and the Appellant standing right at the lift lobby. After his colleague telling him something, he told the Appellant that since the Appellant's action earlier on caused suspicion, he was going to search the Appellant. Upon the search, he found a white Marlboro cigarette box from the left upper pocket of the white shirt that the Appellant was wearing. In the presence of the Appellant, the witness opened the box, and inside the box were three tablets, white in colour, wrapped by plastic paper. There was also another item wrapped by plastic paper containing about 10 tablets. No other thing was found. Then the witness declared arrest on the Appellant for the offence of possession of dangerous drugs, and then verbally cautioned the Appellant. Under caution, the Appellant told the witness that those things were for his own consumption and asked the witness not to arrest him.

3. Then the Appellant was brought back to the Wong Tai Sin Police Station for further inquiry.

4. The witness put the suspected dangerous drugs into two envelopes in the presence of the Appellant and the Duty Officer. The envelopes were then sealed. The Duty Officer, the Appellant and the witness signed on each of the two envelopes. The suspected dangerous drugs inside the envelopes were certified by a Government Chemist to contain 0.73 gramme of a mixture containing 0.39 gramme of heroin hydrochloride, and another item containing 2.56 grammes of a mixture containing 1.32 grammes of heroin hydrochloride.

5. The Appellant elected not to give evidence before the Magistrate. In his cross-examination of the only witness for the prosecution, ie PC49171, the Appellant put his case. His case was to the effect that he did meet the two police officers at the location described by the witness. The witness took a packet of Marlboro cigarettes from the Appellant's pocket. The cigarette box contained cigarettes which were thrown away by the witness. The witness asked him to inform the police as to the whereabouts of drug traffickers in the area. The Appellant refused. Thereupon the witness left the scene and returned shortly after. The witness continued to ask the Appelllant to inform on drug traffickers and the Appellant maintained his refusal. The witness then showed him the Marlboro cigarette box which contained things which did not belong to the Appellant. Those things were apparently the dangerous drugs certified by the Government Chemist later.

6. As the Appellant elected not to give evidence, the only evidence before the Magistrate was the evidence of the police officer. The Magistrate came to the view that the prosecution witness appeared to him to give evidence in a straightforward manner and found him to be convincing and truthful. Based on that evidence, the Magistrate concluded that clearly the drugs were found in the Appellant's possession, that the drugs were properly handled by the police, that they were found upon examination to be dangerous drugs, and that the elements of the charge were proved beyond a reasonable doubt.

7. The Appellant has not been able to persuade me that the Magistrate erred in law or on principle. Indeed, as the police officer was the only witness before the Magistrate, if the Magistrate believed him, the inevitable consequence would be to find the Appellant guilty of the offence as charged. I dismiss the appeal against conviction.

8. Now I turn to the appeal against sentence. Before sentencing the Appellant, the Magistrate ordered a probation as well as a Drug Addiction Treatment Centre ("DATC") report. Those reports were not in favour of the Appellant. The Probation Officer's Report concluded that considering the Appellant's repeated offences, hardcore drug problem and flimsy family support, external supervision was considered inexpedient to the Appellant's rehabilitation. Probation supervision was not recommended. Similarly, the DATC report referred to the Appellant's failures in treatment centre, his poor attitude towards compulsory treatment and repeated involvement in criminal activities. It stated that a further period of treatment centre programme did not provide any beneficial effect to the Appellant. He was therefore not recommended for admission to a DATC for further treatment.

9. The Appellant had 25 previous convictions, 15 of which involved dangerous drugs. His addiction history spanned over 28 years. The Magistrate considered two decisions of the High Court dealing with appeals from Magistrates' decisions in cases involving sentence of offenders for small quantities of dangerous drugs, namely R v Li Siu-man, HCMA 248/96 and R v Lam Wai-ping, HCMA 239 & 240/97, in passing sentence. In both of the cases referred to, a starting point after trial of 12 months' imprisonment was considered appropriate. In the absence of a clear record or a plea of guilty entitling the Appellant to some mitigation, the Magistrate adopted the starting point of 12 months' imprisonment as the appropriate sentence for the Appellant.

10. I do not consider that the Magistrate had erred either in law or on principle. Nor do I find the sentence excessive. In the circumstances, I dismiss the appeal against sentence as well.