THE QUEEN v. CHAN WING YIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 890 OF 1987

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JUDGMENT

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1. The appellant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134.

2. He admitted possession of the drugs - one polythene bag containing 7.97 grammes of mixture - but said they were for his own consumption. They were found in his underpants during a search in Tung Ching Road, Kowloon City.

3. The appellant told the court that he had been a drug addict for several years. He was receiving methadone treatment at Sir Robert Black Clinic, which cost him $120 per month. However, he also suffered from back pain - confirmed by medical evidence that he had spondylitis - from which he sought relief in heroin. This cost him a further $300 per month. He recited various other items of expenditure, totalling $1,700 approximately. He earned $2,500 as a driver. There was thus uncontradicted evidence that he could afford to support his habit.

4. There were, however, certain aspects of the appellant's evidence that the magistrate did not believe. He said he had bought this bag of drugs for $230. He had not intended to buy such a large quantity. He was looking for a $20 packet. He usually bought his heroin at the Sir Robert Black Clinic, but there was none for sale there that day. He had therefore gone to the Kam Wah Restaurant in Kowloon City - 15 minutes by car from his home - where he had once before bought heroin. No small packets were available. He had therefore bought the equivalent of 10 fixes for $230. He said he received a discount for buying such a quantity, but this was not apparent from his evidence.

5. The appellant was asked if he ever bought drugs elsewhere, but he said he could not remember. The magistrate found him evasive on this point and did not believe his evidence.

6. To ask the court to believe that a drug addict cannot buy a $20 packet in Kowloon City is straining credulity. Even making allowance for the appellant's reluctance to reveal his sources of supply, the magistrate had sufficient justification for disbelieving the appellant's account of how he bought the drugs.

7. That, of course, does not necessarily mean that he had them for trafficking purposes but, since the burden of proof was on the appellant, the magistrate was entitled to say that he had failed to persuade her otherwise.

8. For these reasons I am unable to say that the verdict is unsafe or unsatisfactory. The appeal is dismissed.