THE QUEEN v. LEE SHEUNG SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 663 OF 1988

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J U D G M E N T

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1. The appellant faced a charge that he committed an offence of possession of dangerous drugs for the purpose of unlawful trafficking contrary to Section 7 of the Dangerous Drugs Ordinance.

2. At the time of plea he admitted possession but denied the allegation of unlawful trafficking. The case then became a 'rebuttal' case.

3. The prosecution facts were not in dispute and they were that at 6.20 p.m. on the day in question, two police officers in uniform on patrol saw the appellant squatting in a rear lane in the Shaukiwan area. The brief facts described his reaction on seeing them as 'at a lost and acting suspiciously'. When they went up to him they found that he had a polythene bag containing the drugs on the ground in front of where he was squatting. They arrested him and cautioned him, and took him to the police station. The drugs were subsequently analysed, found to be a mixture weighing 10.44 grammes of which 0.73 of a gramme was salts of esters of morphine.

4. The appellant in evidence said that he was a drug addict of long standing; that he was employed as a dish washer of the food stall; and that he bought the drugs about half an hour before his arrest at a cost of $200. He said that he would have consumed the drugs by taking them four times a day and the quantity he had would have lasted him 3 days. He said that his method of consumption was by way of injection. He said that he was earning 3,000 odd dollars a month of which he spent $2,000 a month on drugs. In cross-examination 'he was asked for' details of how he divided his drugs for the purpose of storing. He said that he had some bottles not on his person but concealed some 9 to 10 feet away from him in the rear lane. He was asked this question: "Ever tell the police you had syringes and Po Chai Pill Phial 10 feet from you?" Answer: "No, I did not tell them, but they could not see the syringe."

5. The learned Magistrate did not accept the appellant's evidence and convicted him as charged.

6. On this appeal against conviction Mr. Dennis Law relies on 3 main grounds of appeal; but his substantial ground really is that if the learned Magistrate had considered the factors mentioned in two judgments given by Mr Justice Bewley on the 7th June 1988, namely The Queen v. Ip Ching-yuen, Magistracy App. No. 153 of 1988 and The Queen v. Fan Shu-sum, Magistracy App. No. 236 of 1988, he would have had difficulty in coming to the conclusion that the appellant had failed to rebut the presumption.

7. The learned Magistrate in his Statement of Findings said this:

"He did not impress me as a witness of truth and I rejected his explanation. In particular I aid not believe the appellant's evidence in cross-examination that police officers saw a syringe at the scene. There was no mention of this in the brief facts nor did the appellant state it in the examination-in-chief that the bottles and syringes were close to him at the time of arrest. I did not believe that there were such items at the scene. I did not believe the appellant when he said police searched and found a syringe."

8. The learned Magistrate's reference to evidence that the appellant said that the police saw a syringe at the scene is not consistent with the evidence which appears in the record which I have just quoted, namely that the appellant said the police could not see the syringe at the scene. The learned Magistrate subsequently said this:

"The amount seized was one bag containing over 10 grammes of a mixture. I found it difficult to accept that the appellant would be able to inject over grammes of mixture per day."

9. The learned Magistrate does not indicate how he came to the conclusion that it was difficult to inject over 3 grammes of mixture per day. Mr. Law points out on behalf of the appellant that the mixture in this case was a very weak mixture in that only 6.99% of it constituted heroin. It may well be that a drug addict of long standing, as the appellant was, may find it very easy to consume large quantities of such a weak mixture.

10. In cross-examination the prosecutor did not challenge the evidence that he was an addict, nor the price which he paid for the drugs nor his implicit assertion that he had the financial ability to pay for them.

11. These matters, namely his unchallenged history of addiction, his ability to pay, the fact that the drugs were in single container and the very weak mixture pointed to the likelihood that the appellant did have the drugs in his possession for his own consumption. The brief facts do not say why it was that the appellant made the officers auspicious at the scene. But if he appeared to be "at a loss, and acting suspiciously", that conduct could very well be consistent with what the appellant says, namely that he was getting ready to prepare the drugs for his own consumption.

12. The learned Magistrate was entitled to disbelieve the appellant. But the appellant's assertion that he did have the drugs for his own consumption could not be rejected out of hand. It could only be rejected if the learned Magistrate, having considered the factors which I have mentioned, concluded that notwithstanding the presence of those factors the appellant had, nevertheless, failed to rebut the presumption.

13. I think therefore that the conclusion that the appellant had failed to rebut the presumption is unsatisfactory. I accordingly allow the appeal against conviction, quash the, conviction and sentence in respect of the charge of possession for the purposes of unlawful trafficking and substitute therefore a conviction for possession contrary to section 8 of the Dangerous Drugs Ordinance.