R. v. LAU KAI WING

IN THE COURT OF APPEAL

1994, No. 657

(Criminal)

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J U D G M E N T

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Litton, V-P, giving the judgment of the Court:

1. This is an application for leave to appeal against conviction. The applicant was convicted on 7 December 1994 by Deputy Judge Day in the District Court on one charge of trafficking in a dangerous drug and was sentenced to three years' imprisonment.

2. The facts established by the prosecution were these. On 21 March 1994 at 8pm the applicant was stopped by the police and searched at Sheung Shui outside the Sheung Shui Vegetable Market Co-operative. There were found inside his jacket pocket wrapped in a newspaper 63 packets of heroin, divided in 3 packs of 21 bags. The weight of the total mixture was 25.94 grammes with 11.15 grammes of salts of esters of morphine. When arrested the applicant said the drugs were for his own consumption.

3. The question before the Deputy District Judge was quite simply whether the prosecution had on all the evidence satisfied him that this was a case of trafficking and not of mere possession.

4. The quantity concerned was not inconsiderable but was not such as by itself necessarily to have raised an inference of trafficking.

5. The applicant was employed at the time at a construction site as a construction worker and he said that he consumed 3 packets a day, by injection into his groin.

6. An important question for the judge was whether the applicant was likely to have been able to afford purchasing such a large amount at one time for his own consumption. There was accordingly cross-examination in depth concerning his earnings. But, for reasons which we will deal with later, this was inconclusive.

7. Another matter the judge weighed was this: Why was it necessary for the applicant to buy 63 packets, instead of one large packet containing the same quantity of heroin? The judge thought that the applicant's answers to that question were unsatisfactory. For our part we find some difficulty in appreciating the judge's anxiety on that score. As it seems to us, the packaging by itself was neutral.

8. Another factor which the judge weighed was this. In the applicant's cautioned statement he had said unequivocally that the 63 packets of heroin were bought at 6pm on the night of his arrest: and since he was not apprehended until 8pm it meant in effect that he was on the streets with that quantity of drugs for two hours. His place of work was not far from the place where he was arrested. When the applicant gave evidence, he told the court that he in fact did not leave work till 7pm: thereby in effect trying to say that the period of time during which he had the drugs in his possession and in the streets was not as long as he had indicated to the police.

9. What the judge had before him were essentially questions of facts and, of course, the applicant's own credibility as a witness. We have given anxious consideration to this case because, upon the somewhat bare primary facts before the court, this case was at the very borderline of trafficking. The prosecution might perhaps have adduced evidence as to what the street value of the quantity of heroin was but unfortunately such evidence was not before the court. The question which the judge weighed as to whether this applicant might have been able to afford to purchase this amount for his own consumption out of his earnings was not therefore explored as convincingly as it might have been.

10. At the end of the day the matter before the judge was a pure question of fact. He saw the applicant give evidence. He was not persuaded in the least that the applicant had the drugs simply for his own consumption. He clearly bore in mind that it was for the prosecution to satisfy him beyond a reasonable doubt that the applicant was trafficking; and weighing the evidence before him he was so satisfied. Whilst the matter has given us some anxiety, at the end of the day we are unable to find any error in the judge's approach, such as to warrant interference by this court. Whilst this is a case where we feel that leave should be given, we treat the hearing of the application as the hearing of the appeal and dismiss the appeal.