THE QUEEN v. LIU CHI KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 182 OF 1988

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J U D G M E N T

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1. The appellant was convicted of possession of 3.62 grammes of dangerous drugs for the purpose of unlawful trafficking. He admitted possession for his own consumption and gave evidence in an unsuccessful attempt to rebut the presumption.

2. He said he had been working for 10 days, since his discharge from Hei Ling Chau, in a metal shop, earning $130 a day on a casual basis. He normally spent $50 a day on drugs, which he bought on alternate days. His only other expenditure was $10 for a meal. The shop was only 15 minutes walk from the staircase where he lived and where the seven packets of drugs were found. He had no travelling expenses, nor did he have to pay rent, electricity or water charges. He was single and his only relatives in Hong Kong were his uncles.

3. The appellant said he bought the seven packets for $90 in Tung Tau Estate that evening. He had $80 left which was in his prisoner's property. He consumed drugs by way of injection. Although he sometimes did this at the staircase, he kept a syringe and needle at a "bricks stall" a few minutes walk away, which he threw away after use.

4. The magistrate did not believe the appellant. He did not say why, except that "considering the evidence as a whole and the demeanour of the defendant", he found the latter failed to discharge the burden on the balance of probability.

5. The appearance of the appellant is quite clearly that of a man who is heavily dependent on heroin. His demeanour in the witness box would have been less than impressive.

6. On the other hand it seems to me that there is nothing in his evidence that is improbable. in the absence of evidence to the contrary, there was no reason to disbelieve it and the magistrate gave none. The packets of drug were equally suitable for daily consumption as for resale. I am satisfied the appellant had succeeded in rebutting the presumption.

7. The appeal is allowed and a conviction for simple possession is substituted. The sentence is reduced to 6 months' imprisonment