THE QUEEN v. LAU YUK YING

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL No. 663 of 1989

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BETWEEN

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J U D G M E N T

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1. The appellant was charged with the offence of possession of a dangerous drug for the purpose of unlawful trafficking, Contrary to Section 7(1) of the Dangerous Drugs Ordinance, Chapter 4.

2. At the outset he admitted possession but denied his purpose was unlawful trafficking. The case proceeded in the Magistrates Court as a 'rebuttal' case.

3. The appellant gave evidence to the effect that he bought the drugs for his own consumption, that he was an addict of long-standing and that, since he needed to inject drugs 3 to 4 times a day, he had bought this quantity to provide himself for a supply for 3 days.

4. In the course of his cross-examination, he was asked about his employment. He told the court that he was a tailor and he went on in answer to a further question to say that, had he not been arrested that day, he would have returned to his working place. The cross-examination then continued as follows:

"Q. Colleagues knew you drug addict?

A. Some do.

Q. Colleagues take drug?

A. Yes, at place of working.

Q. Injection together?

A. We cannot inject together, toilet small.

Q. Share drugs.?

A. Yes, sometimes.

Q. Share with colleagues drug?

A. No. I buy my own drug.

Q. You share with colleagues?

A. No."

5. The learned magistrate did not accept the appellant's evidence that the drug was for his own consumption, found that he had not rebutted the presumption and convicted him as charged.

6. Mr. Law, who appears for him in his appeal against conviction, relies on several grounds.

7. On the first day of the hearing, I raised with counsel for the respondent during argument, as a result of a point made by Mr. Law, whether the cross-examination of the appellant infringed tae provisions of Section 54(1) of the Criminal Procedure Ordinance, it having been held that the conduct of sharing drugs by giving one's own drugs to another amounted to trafficking within the definition of that term under the Dangerous Drugs Ordinance.

8. As it was a point which had not specifically arisen under the grounds of appeal submitted by Mr. Law, I gave counsel for the respondent the opportunity to consider the matter and that is why the appeal was adjourned until today.

9. Today, Mr. Stone appears on behalf of the respondent. He did not appear on the first occasion but he informs me that he has found some difficulty in determining exactly what was meant by the appellant's answer to the question about sharing drugs. In any event, however, he considers that, since the learned magistrate in finding that the appellant had not bought the drugs for his own consumption was influenced by that part of the cross-examination, he concedes that there seems to have been an infringement of Section 54(1) and for that reason is prepared to concede the validity of the appeal.

10. I therefore allow the appeal against conviction quash it and substitute therefor a conviction for possession of a dangerous drug.

11. The appellant was sentenced to imprisonment for 18 months on the basis of the conviction on the more serious charge. I quash the sentence of an imprisonment for 18 months and substitute in lieu a sentence of imprisonment for 9 months. To that extent the appeal against sentence is allowed.