THE QUEEN v. LO SHING YUEN

IN THE SUPREME COURT OF HOGG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 5 OF 1991

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BETWEEN

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JUDGMENT

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1. The appellant pleaded not guilty to a charge of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The evidence for the prosecution was that he was seen in public by two police officers on plain clothes duty who were suspicious of him and intercepted his, searched him and found on him what one of the witnesses described as five small plastic packets wrapped in white piper which in turn were wrapped by white paper.

3. The subsequent analysis of the contents of the five packets showed that they contained 0.94 grammes of a mixture of which 0.63 grammes was salts of esters of morphine. When the defendant was cautioned on arrest, he said this "Don't charge me with the offence of trafficking the thing is for my own cons sumption."

4. At the trial, the appellant gave evidence and called a witness to put before the court a defence denying possession. The magistrate did not accept this evidenceand found that he was in possession and, because the presumption under section 46 of the Dangerous Drugs Ordinance was triggered by the number of packets and the weight of the salts of esters of morphine he went on to consider whether that presumption had been renuttea. He said that he considered whether it has been rebutted on the valance of probabilities either on the Crown evidence or the defence evidence. He also went on to say that he noted the contents of exhibit P. 3 which was the document containing the post record of what the defendant had said after caution on arrest and that he found that he could attach no weight at all in the circumstances to the defendant s claim that he has the drugs for his own consumption. He found that the presumption had not been rebutted and convicted the defendant as charged.

5. Mr. McCoy who appears for the appellant today submits that the conviction for trafficking should be quashed on the basis that since the number of packets and the weight of the drugs barely raise the presumption the learned magistrate should have been more elaborate in his reasons fur finding the presumption not being unrebutted than he would need to have peen when say dealing with 2 kilogrammes of salts of esters of morphine.

6. The gist of his submission is that the closer one gets to the figure which raises the presumption, the greater the care that is needed in looking at the evidence the greater the need for the tribunal of fact to explain how it came to the conclusion that the presumption has not been rebutted.

7. In this case, although the learned magistrate has said that he considered the contents of exhibit P. 3 Mr McCoy submits that an important part of the evidence in this case was the defendant's reaction at the time when the drugs were found on him and the evidence of that reaction is contained in exhibit P. 3.

8. The learned magistrate, if he had carefully considered that evidence may well seeing that in this case the amount was barely over the presumption amount have concluded in the defendant s favour, and may have been adversely affected in considering this question by the fact that he has found the defendant s defence incredible.

9. I find that this submission has some merit. It seems that the magistrate did fail to consider that part of the evidence in marring that assessment. In the circumstances the conviction is unsatisfactory insofar as it relates to the offence charged.

10. I therefore allow the appeal quash the conviction, substitute therefor a conviction for possession of the dangerous drugs involved. I quash the sentence of t years which the learned magistrate imposed for the trafficking offence and in substitution for that sentence I impose a sentence of such length as dill enable the appellant's release today