HKSAR v. CHEUNG FO KAM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.431
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. This Applicant was convicted on 9th July 1997, following a trial before Deputy Judge Chainrai in the District Court, of trafficking in a dangerous drug, namely a mixture containing 28.74 grammes of heroin hydrochloride contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. He now seeks leave to appeal against his conviction and the sentence of five years' imprisonment that was consequently imposed.

2. In his self-made grounds, the Applicant states that the drugs were for his own consumption only. The ground that he puts forward for his appeal appears therefore to be that, as the heroin was not for the purpose of trafficking, he has been wrongly convicted of this offence. On sentence he complains that he is serving a term which reflects trafficking when it should only have been for simple possession of heroin for his own consumption.

3. The briefest outline of the Prosecution's case at the trial reveals that the Applicant was the tenant of premises on the Wah Fu Estate. The Applicant's wife was seen, during an observation conducted by police on 14th March 1997, to open a metal grille outside her flat. Police rushed forward to keep the door open. She then shouted out "Police" and the Applicant was seen to walk slowly from one room of the flat to another. Very soon afterwards police were able to find the drugs, and other paraphernalia including a blender connected with heroin trafficking, in the room where the Applicant had gone.

4. The Applicant's immediate response was that the mixture, weighing altogether 176.03 grammes, was for his own consumption. The Applicant gave evidence in the trial that he used heroin to relieve the pain that he suffered. He was able to buy a large amount because the seller was going to China and it was cheaper to buy in that quantity. He gave the explanation that he had sufficient money to purchase this large amount because his children had given him the money at Chinese New Year. He also had money from government allowances.

5. The learned Deputy Judge gave her careful consideration to all of the matters raised on the Applicant's behalf, and she drew what seems to have been an overwhelming inference that trafficking was established. Her approach and her reasoning cannot be faulted. We are not here to conduct a fresh trial or to give our evaluation of matters concerning evidence which have been introduced today by the Applicant. Our responsibility is to see whether there are grounds for overturning the decision of the lower court. We consider that neither as to the conviction nor as to the sentence, which fell squarely within the Lau Tak Ming guidelines, are there any reasons for us to interfere.

6. The applications, both as to conviction and sentence, are dismissed. They were without the slightest merit and we shall, for that reason, order two months' loss of time to the period already served by the Applicant, which will have the effect that he will now serve a longer period in the custody of Correctional Services.

Mortimer, V.-P.:

7. Applications are refused and there will be two months' loss of time.