HKSAR v. AU YEUNG FU

CACC208/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.208 OF 2000

(On Appeal from DCCC No.114 of 2000)

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J U D G M E N T

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Stock JA (delivering the judgment of the Court) :

1. The applicant pleaded not guilty in the District Court to a charge of trafficking in dangerous drugs. The judge convicted him and sentenced him to six years' imprisonment. This is his application for leave to appeal against conviction and sentence.

2. The facts are that on 20 November 1999, the police stopped the applicant on a stop and search operation; and in his left front trouser pocket, they found a plastic bag with white substance. Under caution, the applicant said that he purchased the drugs in Shenzhen for 8,600 Yuan that day, and asked for a chance.

3. Laboratory examination showed that the bag contained 49.08 grammes of a mixture containing 31.1 grammes of heroin hydrochloride. The prosecution case was not contested by the applicant. He admitted that he had these drugs in his possession but asserted that they were all for his own consumption. He gave conflicting evidence which did not impress the judge about the place at which he had purchased the drugs - whether in Shenzhen or in Hong Kong. He had told the police that he had purchased the drugs that day in Shenzhen, and he told the court that he had purchased them in Hong Kong. He said that he consumed 3 to 4 grammes per day, but the judge was sure that that was nonsense, for it was considerably more than is consumed by addicts.

4. In his written application in support of his proposed appeal against conviction, the applicant asserts that the facts did not warrant a conviction for trafficking - no money was made, and he was originally charged only with possession. In our view, the judge was entitled to draw the obvious inference from the facts which he found established. He referred to the judgment in R. v. Cheng Ping Chiu, Crim.App.No.162 of 1993 (unreported) as entitling him to take judicial notice of the fact that the average consumption of a heroin addict was between 0.25 and 0.7 grammes of heroin per day, and he rejected the applicant's story that he consumed 3 to 4 grammes per day. He was sure that the applicant had purchased these drugs in Shenzhen, commenting as an aside that the importation of the drugs itself constituted trafficking, and concluded that the drugs which he had in his possession in Hong Kong were not for his own consumption, but were for trafficking.

5. This was indeed a significant quantity. The applicant was carrying these drugs in the street and on his own admission, he had spent over $8,000 for them that day. This had all the hallmarks of trafficking. The judge was entitled to come to the conclusion, on the evidence before him, that the applicant had these drugs for the purpose of trafficking, and there is no basis upon which this finding can properly be impeached. The application for leave to appeal against conviction is accordingly dismissed.

6. As for sentence, the deputy judge took a starting point of 6 1/2 years' imprisonment and reduced that to 6 years, to give some credit for the fact that the applicant had at least admitted possession of the drugs. The applicant is not a person of previous good character. He has numerous convictions for possession of dangerous drugs and one for trafficking. The starting point employed by the judge was appropriate, and the sentence imposed is not excessive.

7. Accordingly, the application for leave to appeal against sentence is also dismissed.