R. v. MAK SIU LING

IN THE COURT OF APPEAL

1995, No. 3

(Criminal)

___________

________________

J U D G M E N T

________________

Ching JA (giving the judgment of the Court):

1. The applicant in this case was charged with three counts of trafficking in dangerous drugs all on the 26 May 1994.

2. The first count charged that she was trafficking at the junction of Fleming Road and Thompson Road in Wanchai. The amount of drugs was said to be 3.41 grammes of a mixture containing 1.33 grammes of salts of esters of morphine. To this charge, she pleaded guilty and was sentenced to imprisonment for two years.

3. The second count was that at the same time and at the same location, she was trafficking in 3.40 grammes of a mixture containing 0.96 grammes of salts of esters of morphine. She pleaded guilty to a simple charge of possession. That plea was accepted by the prosecution and in consequence, she was sentenced to imprisonment for one month.

4. A third count also on the same day was that she was trafficking at No. 183, Hennessy Road on the 15th floor. In those premises, there was found to be 252.68 grammes of a mixture containing 73.78 grammes of salts of esters of morphine. She pleaded not guilty but was found guilty after trial and she was sentenced to imprisonment for eight years. All of the sentences were to run concurrently. She now appeals against the conviction on the third count alone and upon the sentence.

5. At the time and place in question an under-cover customs officer purchased from her a packet of supposed dangerous drugs. On an analysis that was found to contain what was stated in the first count. She also had in her possession another packet which was similarly analysed and the results are set out in the second count.

6. She is a drug addict and she claims that she had an arrangement with a supplier whereby she would go to the premises in the third count and she would be rewarded with one packet for herself and $30 while she would traffick in the other packet. She was taken to the premises in Hennessy Road and there the items set out in the Government Chemist's Certificate were found. They included various objects among which was a phial or a cap of a bottle of White Flower Oil and it contained traces of dangerous drugs.

7. The question was whether she was in possession of these articles at the time. She does not live in the premises but clearly she had access. The tenant appears to have been a Mr Luk who may have been her supplier and who may have forced her into entering into this trade. She admits using the phial on which traces of dangerous drugs were found.

8. The applicant is not represented. She appeals on the ground that she did not live in the premises but of course she can be in possession even if she did not. She then said the heroin was not hers but that is not the question. The question is one of possession and jury has found that she was in fact in possession. The summing up in this case cannot be faulted.

9. The facts were before the jury who came to their decision and absent any misdirection or any complaint as to the direction it is for her to show how the jury got the result wrong. This she has not done and therefore the application for leave to appeal against conviction must be dismissed.

10. Insofar as sentence is concerned, this was a large quantity of drugs and comes well within the guidelines of what present sentences should be for trafficking and similarly the application for leave to appeal against sentence must be dismissed.