THE QUEEN v. NG KIN-LEE AND ANOTHER

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. We are concerned with an application by the 1st Defendant for leave to appeal against his conviction on a charge of possession of dangerous drugs for the purpose of unlawful trafficking. There was a second charge of resisting a police officer in the due execution of his duty and the Applicant was convicted on both charges. The only argument on the appeal relates to the drugs charge.

2. The evidence for the prosecution, given by police officers, was that they saw the 2nd Defendant transfer a packet to the 1st Defendant and the 1st Defendant hand what appeared to be money to the 2nd Defendant. They then arrested both men and the 1st Defendant was found to have in his hand a packet containing a substantial quantity of dangerous drugs.

3. The defence was that that story was untrue and that the 1st Defendant had bought these drugs earlier in the day from somebody else. The defence, therefore, was in substance that his possession was not for the purpose of trafficking but for his own consumption.

4. Unfortunately the Reasons for Verdict prepared by Deputy Judge Duffus were sadly lacking. They did not even mention this defence, and the single judge who considered this matter had to ask for the trial judge's findings of fact. It was only when these findings were subsequently provided that the Deputy Judge mentioned the presumption as to unlawful trafficking and the possibility that it had been rebutted.

5. In our view the manner in which this defence was handled in the court below was unsatisfactory and it would not be just that the conviction for possession for the purpose of unlawful trafficking should stand. We therefore grant this application. Treating this as the appeal, we allow the appeal and substitute for the conviction for possession of dangerous drugs for the purpose of unlawful trafficking a conviction for simple possession.

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After further argument

Sir Alan Huggins, V.-P.:

6. Having allowed the appeal of the 1st Defendant and substituted a conviction, on the first charge for simple possession of dangerous drugs, it now falls to us to pass a sentence for that offence and we think that twelve months' imprisonment would be appropriate.

7. The application in respect of the 2nd Applicant has caused us a great deal of anxiety. He stands convicted of trafficking in dangerous drugs and he was sentenced to five years' imprisonment. At first sight that appears to be an entirely proper sentence. There are, however, factors which have exercised our minds. In particular we have had regard to the quantity of drugs which was involved and to the reports which have been submitted by the Social Welfare and the Correctional Services Department, and, not without considerable hesitation, have come to the conclusion that justice would be done in this case if we were to allow the appeal and to substitute a sentence of four years' imprisonment. We hope that what may appear merely an act of leniency will not be misinterpreted by others but will at the same time enable this particular Defendant to come out of prison a little earlier and, with the unusually strong support of the young wife whom he recently married, to turn over a new leaf.

8th August 1986