THE QUEEN v. WONG WING YUI AND ANOTHER

Headnote

Joint possession for own consumption: whether possession for the purposes of unlawful trafficking

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Wong Wing Yui, the 1st applicant, and Tse Kit Yee, the 2nd applicant, were convicted after trial before His Honour Judge W. Yeung for possession of dangerous drugs for the purpose of unlawful trafficking.

2. Wong was sentenced to a period of 15 months' imprisonment and in respect of Tse, a Drug Addiction Treatment Centre Order was made. Wong now seeks leave to appeal against both that conviction and if necessary the sentence. Tse seeks first of all for leave to appeal against conviction out of time and, if leave is given, to appeal against the conviction.

3. In respect of the out of time application, we have no hesitation, for reasons which will become apparent, in giving leave and will treat the application of Tse as an application for leave to appeal against conviction.

4. The particulars of charge alleged that on 4th February 1989 in a room at 21, Hing Wah Street in Kowloon they had in their possession a dangerous drug, namely, 63.25 grammes of a mixture containing 3.25 grammes of salts of esters of morphine. There are two matters of emphasis, first: this was a joint charge of joint possession and secondly the date was 4th February.

5. The premises referred to was rented in the name of Tse. Wong and his brother lived in the same premises, Wong and Tse cohabiting. At trial possession of the drugs was not disputed by the applicants. They both admitted that the drugs belonged to them. They stated themselves to be drug addicts.

6. The trial judge made a finding that the drugs were in their joint possession and he went on to say this:

"The Court having heard the evidence cannot conscientiously conclude that the Defendants' allegations were not probable."

7. We take that to mean that the evidence they gave that all the drugs were in their joint possession for their joint personal consumption was accepted.

8. Wong admitted that he had purchased the drugs on 3rd February for the sum of $1,000 and the purpose was to share these drugs with Tse. On the day they were arrested they had both personally consumed some of those drugs before the police raid. The judge then went on to consider the definition of "trafficking" contained in the Dangerous Drugs Ordinance, s.2(1), which reads:

" 'Trafficking' in relation to a dangerous drug includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the Dangerous Drugs and traffick in a dangerous drugs shall be construed accordingly."

9. He came to the conclusion that as far as Wong was concerned, he was:

"clearly supplying the dangerous drugs to D2, and in keeping the dangerous drugs to be shared with D2, he was dealing in or with the dangerous drugs."

10. Then, as regards Tse he said:

"Similarly for D2, she was in possession of the dangerous drugs with the intention of sharing it with D1. That in the opinion of the Court constituted a form of dealing in or with the dangerous drugs."

11. Based on those conclusions, he found the applicants guilty of the offence of being in possession of the dangerous drugs for the purpose of unlawful trafficking.

12. In respect of Tse, Mr. Saw, who appears today for the Crown, very rightly concedes that he cannot uphold the finding and in consequence the conviction. It was for that, and other reasons, that we gave leave for the application to be made.

13. These drugs had been rendered into the joint possession of Wong and of Tse although it is accepted that Wong had originally bought them for the purpose of supplying both himself and Tse. In isolation this could well be construed as trafficking in the sense of supplying or certainly dealing with the drugs but, by the time of arrest and charge, these drugs, as we have said, had been rendered into their joint possession. The drugs became a joint cache to which each resorted for his or her own supply. In that sense, Wong had parted with his personal possession of Tse's share on 3rd February, the date before that alleged in the charge.

14. In Wong Yin Yu [1972] HKLR 6, drawn to the attention of the Court by Mr. Law who appears for both applicants in this Court, Huggins, J. (as he then was) in delivering the judgment of the Full Court, at page 13 had this to say in relation to a submission made to the Court on the meaning of "dealing in" and "dealing with", the Court having accepted that "dealing with" is not necessarily the same thing as "dealing in",

"What amounts to a 'dealing with' dangerous drugs is not easy of definition but in a particular case it will generally be comparatively simple to say whether there has been a dealing with drugs or not. We agree with Mr. Litton that the offence of possession of dangerous drugs for the purpose of unlawful trafficking is not necessarily committed by every person who is guilty of unlawful possession: if it were, there would be no necessity for creating a distinct offence. It follows that a person who, having taken unlawful possession of dangerous drugs, has no intention other than to retain them indefinitely is not guilty of possession for the purpose of unlawful trafficking. Even if he intends to handle them from time to time in order to clean the room or to gain access to something which is obstructed by them, he does not thereby become guilty of the more serious offence."

15. To that we would add that, where joint possession is accepted as being for the personal consumption of those who jointly possess - and we would emphasise that we are considering the  particular facts of this case which are, as the trial judge put it, "unusual" - then those who are in such possession are also in the position of one who "handles" and are not necessarily in possession of the drugs for the purpose of unlawful trafficking.

16. In those circumstances we give leave, treat the applications as the hearings of the appeals, allow the appeals and quash the convictions in both cases. The permissible alternative conviction of being in simple possession of the drugs contrary to section 8 of the Ordinance should be and is substituted.

17. The sentence application of Wong is adjourned in the light of the provision of s.54A of the Ordinance so that the necessary Drug Addiction Treatment Centre Report may be obtained.