THE QUEEN v. LI TING YUEN

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J U D G M E N T

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Bokhary, J. delivered the judgment of the court :

1. On February 15, 1989, the applicant was convicted after a trial in the District Court of possession, for the purpose of unlawful trafficking therein, of a dangerous drug consisting of 123.04 grammes of a mixture containing 6.74 grammes of salts of esters of morphine. He was sentenced to 3? years' imprisonment. He now applies for leave to appeal against conviction and sentence.

2. At the trial, the applicant, who was represented by Counsel, admitted the basic facts on which the Crown based its case, namely, that on October 25, 1988, the drugs in question were found in 16 polythene bags and one phial, all contained in a plastic bag found under his bed in the cubicle which he occupied in a building in Sham Shui Po.

3. Possession was not then in issue. The purpose for such possession was in issue. It was for the applicant to rebut, on a balance of probabilities, the presumption that such purpose was unlawful trafficking.

4. He gave evidence to the effect that he had acquired the drugs solely for his own consumption. The learned District Court judge considered and rejected this evidence; held that the presumption had not been rebutted; and convicted the applicant as charged accordingly.

5. Before us, the applicant says that in fact he had only two small packets of dangerous drugs in his possession. The rest, he says, were in fact 'planted' on him. His admission in the court below, he says, was the result of certain advice which he had received, combined with the condition he found himself in as a person of poor health.

6. Having considered all of the circumstances, including what has been said before us, we do not find that there is anything unsafe or unsatisfactory in the conviction. In so far as the application relates to conviction, it is dismissed.

7. In passing sentence, the learned judge said that the tariff for the quantity of drugs involved in this case ranged between 3 and 5 years' imprisonment. This statement is in line with the guidelines laid down by this court for a drug of this nature from about 30 to 150 grammes. Since 123.04 grammes were involved in this case, the starting point of 4?years' imprisonment selected by the learned judge cannot be faulted.

8. The learned judge arrived at a sentence of 3?years' imprisonment for two principal reasons : First, he thought that the applicant's admission of possession, which saved a considerable amount of time, earned him a substantial reduction. Secondly, the learned Judge accepted that, as a result of serious injuries sustained in motor accident in 1981, the applicant can now walk only with the aid of a stick; and this too the learned judge regarded as a basis for arriving at a more lenient sentence than would otherwise have to be passed. In this connection, one notes with some unease, although not unease at the severity of the sentence, that the applicant's long criminal record includes a conviction in 1983 of robbery. Possibly, the offence was committed before the accident although the conviction was reached long afterwards.

9. In any event and upon the whole, the sentence passed by the learned Judge is one which cannot be faulted, and the application for leave to appeal against sentence is likewise dismissed.