THE QUEEN v. CHAN BING-WAN

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 725 OF 1989

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BETWEEN

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J U D G M E N T

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1. This is an appeal against a conviction for possession of a dangerous drug for the purpose of unlawful trafficking. The appellant had admitted possession of the drug for his own use. Because of that admission, the onus fell on him to satisfy the magistrate, on the balance of probabilities, that his possession was not for the purpose of unlawful trafficking.

2. The appellant testified that, in addition to working as a waiter in a restaurant, he worked as a tailor for his brother. He was asked if he could cupport that allegation with documents and he said he could call his brother when he returned to Hong Kong from Canton. The learned magistrate, in his Statement of Findings, said the appellant was 'unable to provide corroborative evidence to support his testimony that he was employed.'

3. Mr Sceats for the appellant contended that the use of those words gives the impression that the appellant's evidence, to be believed, needed documentary or other evidential support.

4. The onus was on the appellant and I have no doubt the magistrate did not intend to give that impression.

5. However, I am reluctantly persuaded that the conviction is unsafe and unsatisfactory. I allow the appeal and set aside the sentence. I substitute a sentence of three months' imprisonment on the plea of simple possession. The sentence to run as though passed on the 4th May, 1989 and to run concurrently with the sentence imposed on Charge B.