R. v. LAI KAM WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.400 OF 1997

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J U D G M E N T

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1. The appellant was convicted after trial of possession of an instrument fit and intended for injection of dangerous drugs.

2. On 20th December 1996, at about 5:30 or thereabout, a uniformed officer arrived at the lift lobby on the 3/F of Tin Kam House in Shun Tin Estate. He saw the appellant sitting on the ground holding a syringe. When he saw the officer coming, he put the syringe into his pocket. The policeman came up, found the syringe and arrested the appellant. The syringe contained some white liquid which contained traces of dangerous drug.

3. The appellant denied having in possession this syringe. He gave evidence at the trial and said that there were two officers instead of one. However he admitted that he was on the 3/F lift lobby but said he was about to walk downstairs. He said he told the officers that he was going to a clinic to take methadone, but he did not possess the syringe. However the officers took him aside and asked him to help them. They produced two syringes and asked him to choose either one. Basically, the evidence he gave was that he was framed up. The police simply got hold of syringes and accused him of having been in possession of one.

4. The learned magistrate went to exceptional length in helping the appellant in the conduct of his case, in cross-examining the officer and in giving evidence-in-chief. However having considered all the evidence, the learned magistrate accepted the evidence of the officer and convicted the appellant.

5. I have no doubt that the learned magistrate came to the correct conclusion. The officer had obtained information that someone had collapsed and sat on the lift lobby. He arrived at the scene. He was in uniform. There was no reason why he would have brought along a syringe or syringes to frame up the appellant. In the circumstances, there is actually no merit in the appeal against conviction, the appeal is dismissed.

6. The learned magistrate sentenced the appellant to five months imprisonment and he also activated the two month suspended sentence and ordered it to run consecutively making a total of seven months.

7. The appellant is now 42 years of age, he is married with a young son of 10. His wife and child are both in China. According to the record, he was unemployed in Hong Kong and was then receiving public assistance. The learned magistrate said that the appellant had been holding syringes and was about to inject dangerous drug in the public eye, and hence he passed the sentence which he did. The suspended sentence was in connection with another offence. There is no reason why they should not be activated. The appellant had 12 previous convictions, five were dangerous drugs related. The others were theft, blackmail and handling stolen goods. He had been sent to Drug Addiction Treatment Centres on three occasions but obviously these treatments did not do him any good.

8. In the circumstances, I take the view that the learned magistrate was perfectly entitled to pass the sentence he did which was neither manifestly excessive nor wrong in principle and to activate the suspended sentence. The appeal against sentence is also dismissed.