THE QUEEN v. YIP HIN MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 587 of 1988

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J U D G M E N T

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1. The Appellant was convicted in the Magistrates' Court on a charge of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to Section 7(1) of the Dangerous Drugs Ordinance, The Appellant had been accosted in the street by two police officers and searched. In the search a packet containing heroin was found in his pocket. The analysis of the drug revealed that it consisted of a mixture weighing 8,92 grammes of which 0.57 gramme was salts of esters of morphine. He pleaded not guilty but admitted possession so that the only issue before the learned Magistrate was the purpose for which he had possession. He gave evidence for the purpose of rebutting the presumption which arose from his possession of such a quantity of dangerous drugs and the gist. of his evidence was that he was an addict of long standing and had possession for the purpose of consuming drugs himself. He gave conflicting evidence about his place of residence and the learned Magistrate quite understandably came to the conclusion that he was not telling the truth in his evidence and she rejected his evidence. Having rejected his evidence, she came to the conclusion that there was no other evidence capable of rebutting the presumption and so she convicted him as charged.

2. On this appeal Mr. Law, who did not appear for the Appellant below has put forward several grounds of appeal, but the main ground on which he relies is that the Magistrate erred in finding that the Appellant had failed to rebut the presumption, in that she failed to consider certain facts which did arise from other evidence given at the trial.

3. The matters to which Mr. Law has referred are: (a) his unchallenged history of addiction to heroin, (b) his ability to pay for the quantity of drugs he had (The evidence was that he paid $200 for the packet and there was no evidence to suggest that this was below the retail market price); (c) the fact that the drugs were in a single container, namely a plastic bag (d) (and I consider this to be a most significant matter ) the very small quantity of heroin; namely 6.39% of the mixture (Mr. Law makes the point that, with such a weak mixture, a long standing addict would require a quantity such as the Appellant had in order to satisfy his craving), (e) that he claimed at the first opportunity that the drugs were for his own consumption and there was an absence of any evidence pointing in the direction that the drugs were for trafficking, that is, there was no evidence, for instance, that they had been packed in a manner suitable for further distribution.

4. Mr. Law has referred me to two decisions of Bewley J. both delivered on the 7th June this year, in both of which when allowing the appeal in similar circumstances he quashed the conviction and substituted a conviction for possession or dangerous drugs. The first was R.v. YIP Ching-yuen(Mag. Appeal 153 of 1988) and the other R. V. FAN Shu-sum (Mag. Appeal 236 of 1988). . The first was on all fours with the present ease except that in the first case there was a further submission regarding the Magistrate's failure to give an adequate reason for rejecting the Appellant's evidence. That does apply here because as I have earlier said the Magistrate did give a reason and an adequate reason for rejecting the Appellant's evidence. I think in our case that had the Magistrate had these matters brought to her attention, she may very well have concluded that, on the balance of probabilities, the Appellant had the drugs for his own use.

5. I therefore allow the appeal, quash the conviction and substitute therefor a conviction for possession of dangerous drugs contrary to Section 8(1) of the Dangerous Drugs Ordinance. I also quash the sentence and substitute for it a sentence of imprisonment for 9 months.