THE QUEEN v. TAM KAM SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 804 OF 1984

BETWEEN

_____

________________________

REASONS FOR JUDGMENT

________________________

1. Having allowed the appeal of the appellant on the date of hearing against a conviction of possession of dangerous drugs for the purpose of unlawful trafficking and having set aside that conviction and substituted therefore a conviction of simple possession of dangerous drugs and having stated that I would give detailed reasons later, I now do so.

2. The appellant was convicted before the Magistrate at San Po Kong Court on the 16th November last year of the more serious offence and sentenced to 2 years imprisonment. He appealed to this Court against both conviction and sentence.

3. There was no issue that the drugs were in the possession of the defendant at the time he was arrested. And there was no issue that he was carrying a plastic bag in his hand which contained 10 packets of heroin at this time. The number of packets and the weight of the drugs raised the presumption under Section 46 of the Dangerous Drugs Ordinance that the appellant had them in his possession for the purpose of trafficking.

4. The burden thus shifted to the appellant to show on a balance of probabilities that the drugs were not for that purpose. The appellant gave evidence in his Defence. He testified that he had been an addict for nearly 20 years and he had never been convicted of possession of dangerous drugs for unlawful trafficking before. A11 the drugs were for his own consumption. He had had 6 packets on his person on a previous occasion and had similarly been charged with possession of unlawful trafficking but the Magistrate on that occasion accepted that he had it for his own consumption. He takes the drugs by injection. He went out to buy drugs whenever he had finished his stock. He consumed 5 to 6 packets a day. He testified that on the day in question he went to buy these drugs from a man called "Ah Ngau". Ah Ngau usually sold dangerous drugs to him in a bag. It just happened that he did not have a bag available, so the appellant bought these small packets. Ah Ngau did, however, give him a discount as if he had bought one bag. Sometimes he would buy more than 10 packets, sometimes less than 10 packets. After he had bought the dangerous drugs from Ah Ngau, he came down from upstairs. Before he reached the street level, he was stopped by the police and arrested.

5. The learned Magistrate found the following facts proved:

6. In his Reasons for Findings, the Magistrate conceded that the appellant's version could be true and that there was nothing to contradict the appellant's evidence of his income, or of the price he paid, or of the discount he received, or of the fact that he had just been paid and had enough money to buy this amount of drugs. However, the Magistrate added:-

"But he had to satisfy me that it was more probable that he did not have the dangerous drugs foe trafficking than that he did. I found his story unlikely, as I indicated in my judgment; I could not see it was likely that a trafficker would sell off a fairly large number of packets wholesale; after all, the trafficker is in business to sell at retail. It is of course possible that any retailer of any goods will give a discount for quantity but common experience, gained at any rate in dealing with legal goods, tells one that this will be a rare occurrence and the discount will not usually be particularly large. In the nature of things an improbable story cannot prove anything on the balance of probabilities."

7. This would appear to be the main ground for the judgment.

8. With respect to the Magistrate, the Magistrate's opinion that it would be a rare occurrence for a trafficker to sell dangerous drugs at a discount and that the discount will not usually be particularly large was not based on any evidence at all. He appears to base his opinion of his own common experience gained in dealing with legal goods. But with respect, it was never open to tie Magistrate to take his own experience in dealing with what he called "legal goods" into consideration. His opinion was thus based on speculation.

9. Although there were other points on which the Magistrate relied in his Statement of Findings, it would appear that they were added as something of a make-weight as they were not referred to in the judgment which the Magistrate wrote at the conclusion of the case.

10. Crown counsel did not seriously support the conviction.

11. In the circumstances, I set aside the conviction for the more serious offence and substituted the conviction for simple possession.

12. It followed that the appeal against sentence had to succeed and I substituted, therefore, a conviction of 9 months imprisonment.