HKSAR v. LI CHI CHUNG

HCMA556/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.556 OF 2000

(ON APPEAL FROM KTCC 715 OF 2000)

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The appellant was charged upon one offence of trafficking in dangerous drugs. The allegation is that on 21 March 2000, he had in his possession 18 plastic packets containing 5.97 grammes of a mixture, containing 3.22 grammes of heroin, as well as 81 tablets and 6 tablet fragments, containing a total of 1.56 grammes of midazolam maleate. At trial, the appellant was prepared to plead guilty to possession of these drugs but not to trafficking in them. That was then the issue.

2. It was agreed that he had been found by two police officers at 11:10 pm on the night in question, squatting on the ground floor of Block 38, Sau Mau Ping Estate, and he had on him a packet of cigarettes with these 18 packets of drugs plus the tablets.

3. The appellant himself gave evidence and said that all these drugs were for his own use. He would consume two to three packets a day and all the tablets were also for his own use. The magistrate did not believe his evidence.

4. I must emphasize that it is not for this court to retry the case. It is only for this court to see whether the magistrate has erred, as a matter of law, in his approach.

5. The magistrate says that the appellant had given contradicting evidence about the amount he had spent to purchase the drugs, and contradicting evidence about consumption of drugs, in that he had said that he consumed only heroin and no other drugs, whereas he had also said that he took heroin and midazolam, mixed, to counteract leg pain. It was accepted that upon his arrest he had on him $1,075. This sat ill with his earnings and with the cost of drugs. He said that he spent $8,000 a month on buying drugs, yet, according to his own evidence, he only earns $6,000 a month.

6. The magistrate correctly took the approach that the rejection of the appellant's evidence did not itself lead to proof of the prosecution case of trafficking. But the magistrate nonetheless drew as the only reasonable inference from the established evidence that the appellant was in fact trafficking. He cited the fact that the appellant was squatting in a public area with a large quantity of drugs; that he had quite a bit of cash on him, which was odd if he had just purchased the drugs; that he had bits of tablets rather than whole tablets, which again was odd if they were for his own consumption and he took, according to his evidence, ten of the tablets a day; and found that the appellant did not have enough earnings to buy as much as he said he bought for his own consumption.

7. I cannot fault the magistrate's approach. There does not appear to me to be any basis for upsetting the conviction. Accordingly, the appeal against conviction is dismissed.

8. The magistrate sentenced the appellant to 22 months' imprisonment. He took 24 months as his starting point. The appellant, who is aged 44 years, has a long string of convictions for possession of dangerous drugs. The magistrate discounted two months for the supposed fact that this was the first trafficking conviction. Mr Ho, for the prosecution, today points out that that was not quite accurate for there is a conviction for trafficking in February 1989. Be that as it may, I do not take that into account and I shall view the matter upon the same premise upon which the magistrate proceeded.

9. It cannot be said that this sentence is either wrong in principle or manifestly excessive. The appeal against sentence is also dismissed.