R. v. LEUNG KWONG HEI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.673 of 1996

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J U D G M E N T

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1. This is an appeal against conviction for trafficking in dangerous drugs. The appellant was arrested on 19th December 1995 with drugs in his possession. Then it is said that he led the police to a flat or a room which was his in which was found a quantity of heroin in different packages, as well as some methadone and 428 tablets of midazolam maleate. The appellant appears today in person.

2. The appellant was seen on the staircase outside a flat in Kowloon with another. He was seen to touch a lock to the iron grille there. The police were patrolling. When he saw the police, he looked frightened and walked down the stairs. The police intercepted him. They searched him. Inside his jacket, they found three packets of drugs. He said it was white powder for his own consumption. He was arrested. He then said, in answer to a question, that he lived at the place the iron grille of which he had been seen touching and he was led there, and he opened the premises. In the room was a box in which more drugs were found. He told the police that the further bags of heroin there found were "all bought for my own consumption. ... They are not for sale." Later, the midazolam and methadone were discovered. There was also discovered a calculator, a set of scales, plastic sheets, tin-foil, betting tickets and a couple of blades. When all the items were seized, according to the police's evidence, the appellant was cautioned and he said "... the dangerous drugs found from the flat all belonged to me. ... the white powder you found on my body was also part of the dangerous drugs found inside the flat. It's not for sale."

3. Later in the evening, the defendant was interviewed. The magistrate admitted the record of interview into evidence after a challenge to its admissibility. That record of interview records an earlier comment which the defendant made in relation to the drugs found on his person, namely, that the drugs were for his own consumption. He then gave a history of the purchase by him of heroin from someone called Ah Shing over a period of three months prior to the day of arrest.

4. Then the appellant dealt with the tools which he had used to gather the white powder found on his person. He was asked "What are the tools in your house?" That it should be noted was not a question directed to how he had used the tools on that particular day, but was a question directed to the purpose for which the tools in the house were used. In answer to that question, he said that he used a razor to divide the white powder into the decided portion and then he said "Then I would take it with me for my own consumption or to distribute it to my friends." If this is a translation which accurately reflects the nuances in the appellant's original speech, and I am told by Miss Mahomed today, who appears for the Crown, that it does, it suggests that the appellant was speaking then about his normal practice, namely, that he would take drugs up for his own consumption and, perhaps, if the need arose, for friends. It is not a statement which in my judgment can be said to negate the several times repeated refrain of earlier that evening that the drugs found on him were for his own consumption.

5. He was then asked about the betting tickets and tin-foil found in his home. He said that he used those in connection with white powder, which again was for his own consumption.

6. Then there was a question about a piece of paper found in his home which had a number of names on it. He explained that they were his friends who had come to his home that day. He had already distributed the drugs to them for their consumption. That does not constitute an admission that the remaining drugs in the flat were for distribution.

7. Finally, he was asked about the man with whom he was seen at the time of his arrest. He said that that man came to his place twice every week and that he would distribute white powder to him for that man's consumption. That day, he arrived back with Ah Sun "with an intention to take white powder."

8. The appellant's case was that the room was not his, and that certainly the drugs were not his. The police were, in other words, framing him. He also said that the drugs on his person were for his personal consumption on the roof top of the building.

9. The magistrate rejected his evidence and believed, as he was preferably entitled to, the evidence of the officers. Given the appellant's repeated insistence at the time of arrest and during the search of the flat, and according to the police evidence itself, that the drugs on him and in the room were for his own consumption and not for sale, it is natural to look to the Statement of Findings to see whether the magistrate has addressed that point or has been seen to address it. Although the defendant in evidence denied any knowledge of the drugs in the flat, the prosecution evidence itself was such that the defence of self consumption rather than trafficking was one which had in my judgment to be addressed expressly. It is clear from the Statement of Findings that the magistrate has for this central conclusion relied on the record of interview. What he said was this :

"I looked carefully at the contents of the record of interview, with a view to determining what, if any weight should be placed upon it. The record commences with a post recording of what the accused had said when cautioned in relation to this matter, and then goes on to a series of questions and answers. As far I could tell, all the rules laid down for the interrogation of a suspect have been meticulously followed, and the record amounts to a full confession to unlawful trafficking in drugs. The accused told the officer, that the drugs found on him were part and parcel of the drugs found at his home, and he would consume some of the drugs seized himself, but would sell the remainder to others. I could see no good reason to not rely fully on this record."

10. That in my judgment is not at a safe interpretation of the effect of that record of interview in conjunction with the evidence about the appellant's earlier oral comments to the police. The appellant went no further than saying that when he took drugs out, he would either consume himself or distribute to friends. No doubt the implication was also that both might happen. But that was on one interpretation a reference to his practice, and cannot in my judgment be looked at without taking into account the evidence that he contended, on more than one occasion, that the particular drugs on him that day and in the flat were for his own consumption. The magistrate did not rely on the fact that drugs had been distributed to others that day. That may well be because the evidence from the record of interview was that the distribution had already taken place and, if that was so, that provides further reason to address the question whether the remaining drugs were proved to be there for the purpose of trafficking.

11. There appears to be an admission in the record of interview that the appellant was going to give some drugs to his friend Ah Sun, but that was not the basis of the magistrate's finding, and if the only proportion of what was found that was shown to be in the appellant's possession for the purpose of trafficking was the amount he was going to give Ah Sun, the finding of guilt should have reflected that fact. It would have made a very material difference to sentence.

12. It may very well be that from the paraphernalia and quantity of drugs found in the room, the inference of trafficking in the drugs, the subject of the charge, could easily have been drawn. But that, it so happens, was not the basis for the magistrate's finding, and I have not the power to apply a proviso, for a proviso provision does not exist.

13. Accordingly, it seems to me for the reasons I have explained, the conviction cannot stand and it is therefore quashed, as is the sentence. The question which arises is whether there should be a re-trial. This is a serious offence and the quantity of drugs substantial. Subject to any submissions which the appellant might wish to make to me, I intend to order that the case be heard de novo by a magistrate.

[RETRIAL ORDERED]