THE QUEEN v. HO SHIU YUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1565 OF 1989

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BETWEEN

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JUDGMENT

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Penlington, J.A.:

1. This is an appeal against a conviction for possession of dangerous drugs for the purpose of unlawful trafficking.

2. The trial magistrate was satisfied from the evidence before him that the Appellant was in possession of a packet of No. 4 heroin and did not believe his evidence that this had in fact been produced by police officers and had not been found on him. I see no reason to interfere with that finding of fact.

3. What does here concern me and Mr. Callaghan who rightly and fairly has brought it to my attention, is the fact that the amount of heroin was only 0.66 of a gramme which only just barely raises the presumption of trafficking (0.5 of a gramme), and it seems that the trial Magistrate has in effect regarded that quantity as being such that it could be increased some ten or more times if it was diluted or "cut" and in effect produce the equivalent of No. 3 heroin. He seems to have done that without any evidence before him and I am not satisfied that he was entitled to take that approach. I am informed by Mr. Callaghan that the usage of No. 4 heroin, unfortunately, is very much on the increase in Hong Kong and it maybe that that is a fact which was not fully appreciated by the trial Magistrate. It would seem unlikely that, having obtained the very pure soluable No. 4, which is more difficult to manufacture, a trafficker would want to turn it into No. 3 which is usually smoked. The Magistrate probably had in mind the recent Court of Appeal decision in R. v. Cheung Yeung [1989] 2 HKLR 258. That decision however related to levels of sentence, not to any question of a notional conversion of No. 4 heroin to No. 3 for the purposes of the Section 46 presumptions.

4. For those reasons I allow this appeal against conviction for possession for the purpose of trafficking and substitute a conviction for simple possession under Section 8 of the Ordinance. Accordingly I also quash the sentence of two years' imprisonment which was imposed and substitute therefore a sentence of six months' imprisonment.