THE QUEEN v. LEUNG WAI TONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CIRMINAL APPEAL No. 1141 of 1988

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BETWEEN

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J U D G M E N T

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1. The appellant vas convicted on the 21st September 1988, on Charge A. Possession of Dangerous Drug for the Purpose of Unlawful Trafficking and Charge B Possession of Apparatus Fit and Intended for Injecting Dangerous Drugs and sentenced to two years and six months respectively to run concurrently.

2. Although his notice of appeal would appear to indicate that he is appealing against both convictions, it has become apparent at the hearing of the appeal that he is only appealing against the conviction on Charge A. The particulars of this charge were that the appellant on the 28th July 1988 at 5 Waterloo Road, 4th floor, Kowloon, had in his possession for the purpose of unlawful trafficking therein, a dangerous drug, namely one plastic bag containing 3.36 grammes of a mixture containing 0.15 grammes of salts of esters of morphine.

3. The first prosecution witness was PC 22885 Szeto Wai-man, attached to the Special Duty Squad at Yaumatei Police Station who, on the date in question, at 1250 hours, while on plain clothes duty entered the premises in question, Room C, and saw the appellant squatting there with a candy box (sugus) just by his hands and feet. He was the sole occupant of the room. This police officer testified that when the appellant saw him he closed the box. The police officer revealed his identity and told him not to move. Then he opened the box for a look and found dangerous drugs inside it. He saw one packet in a polythene bag and two plastic boxes inside each of which he saw needles, one had 12 and the other had 8. There were two blue paper boxes and a paper box with a spoon inside which had cotton wool on it with traces of suspected dangerous drugs. In another paper box were two syringes, one had a needle and there was white suspected dangerous drugs in it, the, other was empty. There was an empty Po-chai Phial and a pair of scisscors and a pair of eyebrow tweezers and a cigarette lighter. He arrested the appellant and cautioned him to which the appellant re lied "I am not selling white powder, I am preparing to consume dangerous drugs here."

4. The second prosecution witness was the Dangerous Drugs Police Constable at Yaumatei Police Station who provided the evidence which complete the chain of evidence with regard to the exhibits and who produced the Government Chemist's Certificate which confirm the quantity referred to in the charge.

5. The appellant having been advised about the presumption of knowledge and trafficking and also his rights, elected to remain silent. He called as his witness, a police constable, who really didn't take the case any further either for the prosecution or the defence.

6. At the conclusion of the hearing the magistrate recorded a short judgment in which he said "Only question is whether on balance of probability your answer to the caution rebuts the presumption of trafficking. The box represents a comprehensive drug dependants kit with all parahpernalia for more than one to share. Undoubtedly, some for your own consumption but on balance of probability and bearing in mind the quantity to raise presumption is two and a half times with 3.36 grammes in the bag, let alone the syringe exhibits, find presumption not rebutted. No evidence from you other than that. Find guilty on both charges."

7. Later in his statement of findings the learned magistrate said :

3. "It was the case for the Crown that the Police had entered a room in which the appellant was the sole occupant. He was squatting down with, in front of him, a tin box containing the drugs and articles the subject of the two charges. It should be seen because it is a classic example of the tool-kit & stock-in-trade of those at the lowest bevel who unlawfully traffick in dangerous drugs, including amongst other things, two spoons, two unused syringes and 20 unused needles.

4.     The circumstances of the actual arrest led to the conclusion that the appellant was about to take some of the heroin for himself and indeed in answer to the caution, which went in at his own request, he said 'Sir, I understand. I do not traffick in white powder. I was going to have a meal of white powder.'

5. At the close of the case he declined to give evidence but called the other PC who was on the raid to give evidence, but as might be expected he was as of little use to the prosecution as he was to the appellant. He had nothing to say in his address to me.

6. I considered whether his statement in answer to the caution amounted to a sufficient rebuttal of the presumption of possession for the purpose of trafficking but concluded that it was no more than the stock answer given by those arrested for this offence in an attempt to lessen the consequences.

7.Another consideration was that the amount of mixture in his possession was 2½ times the amount required to raise the presumption.

8 There was no evidence other than that mentioned to rebut the presumption. Obviously he intended to take some of it, but even on the lesser burden of proof I was unable to believe that he had all of it for his own consumption. The facts I found sufficiently appear in paragraphs 3 & 4 above. I found him guilty as charged and convicted him."

8. Mr Macrae who appears for the appellant relies on his first ground of appeal that the Magistrate erred in let in finding that any presumption arose against the defendant under the Dangerous Drugs Ordinance Cap. 134 section 46(d).

9. It is conceded by Sir Macrae that a presumption would arise on the evidence under section 46(e) (which relates to 2 grammes of a mixture etc), but as the Magistrate referred to the quantity as being 2½ times that required to raise the presumption, he must have been referring to section 46(d) (which refers to one half gramme of an ester of an ester of morphine).

10. Mr Kilgour for the Crown concedes that no presumption arises under section 46(d) but agrees that a presumption does arise under section 46(e).

11. If the Magistrate was relying on the presumption in section 46(d), he was indeed in error. And it was the sort of error which might have affected his reasoning in concluding whether the presumption had been rebutted or not.

12. The second ground of appeal is that the learned Magistrate erred by suggesting that the :

'' 'only question is whether on balance, of probability your answer to the caution rebuts the presumption of trafficking' (p.12 Appeal Bundle), and 'there was no evidence other than that mentioned to rebut the presumption' (p. 16 appeal Bundle). The learned Magistrate failed to have regard to the following evidence, inter alia, which was capable of rebutting the presumption :

i) the circumstances in which the appellant was first seen by police officers which : 'led to the conclusion that the appellant was about to take some heroin for himself' (p.15 Appeal Bundle) and was therefore a drug addict;

ii) the finding of only one plastic bag containing dangerous drugs;

iii) the relatively small quantity of mixture which would have remained after consumption had taken place, which may not have been enough in itself to have activated a presumption of trafficking;

iv) the minute quantity of salts of esters of morphine found in the plastic bag.

v) the small quantity of the mixture namely 3.36 grammes.

13. Mr Macrae submits that the Magistrate was wrong to conclude that the presumption of trafficking could only be rebutted d by the appellant's answer to the caution. He maintains that it could be rebutted by an exam nation of the evidence as a whole which was in favour of the scenario of a drug consumer rather than that of a drug trafficker.

14. In support of this assertion he relies on Criminal Appeal 432 of 1976 Cheng Gee v. the Queen.

15. In that case Huggins, J.A. was dealing with an appeal from the Magistrate's Court against a conviction for a similar offence. He said :

``The evidence which the magistrate believed was that the Appellant was seen smoking a cirgarette when they raided a but and that when he was searched there was found in his pocket a polythene bag containing 1.7 grammes of a mixture containing 0.58 gramme of heroin. If, of course, the Appellant's evidence was true then the police evidence was not true, but the magistrate was satisfied that the police were telling the truth. However, the magistrate went on to say :

'The question of presumption did not arise and I found the Appellant guilty as charged.'

I take that to mean - and counsel for the Crown agrees with me - that the learned magistarte did not think it necessary to rely on, the presumption which in law did, arise and that it was open to him to draw an inference that the Appellant had these drugs for the purpose of trafficking. With respect I do not think that the evidence did justify that inference. There must come a time when the quantity of drugs found in a defendant's possession is such that the only purpose he can have them for must be trafficking, but here the quantity was in my view nothing approaching, that amount. Perhaps because of the nature of the defence the learned magistrate did not warn the Appellant of the existence of the presumption. It would have been difficult for the Appellant to swear that the drugs were planted on him and at the same time to say that, if he was in possession unlawfully, he had them for his own consumption. Nevertheless the Appellant was not warned of the possibility, that the presumption would result in his conviction and had he been warned he might have put his case differently.

I am satisfied that this conviction cannot stand as things are. It is not open to me to say that the learned magistrate would inevitably have held that the Appellant had not rebutted the presumption which in fact arose."

16. Thus, says Mr Macrae, the learned judge was saying that accepting the police evidence and accepting that the presumption arose, it was not open to him to form the view that in view of the small quantity of dangerous drugs concerned, that the defendant would inevitably have failed to rebut the presumption. He relies particularly on the minute quantity of salts of esters of morhpine found in the plastic bag, namely 0.15 of a gramme and the very small quantity of the mixture found in the bag, namely 3.36 grammes.

17. Ground 3 is that the learned Magistrate unfairly concluded that the appellant's answer to caution was ``no more than the stork answer given by those arrested for this offence in an attempt to lessen the consequences" ("p. 16 Appeal Bundle) when lie should not have been so influenced by such irrelevant and extraneous factors.

18. Ground 4 is that the learned Magistrate was unduly influenced by the "paraphernalia for more than one to share" (p.12 Appeal Bundle), in particular ...... ''two spoons, two unused syringes and 20 unused needles" (p.15 Appeal Bundle) when the evidence was equivocal.

19. Ground 5 the learned Magistrate failed to bear in mind that, presumption notwithstanding, he had to be sure of the appellant's guilt as charged Accordingly, since he accepted that the appellant was about to consume ``some" of the dangerous drug and could not determine how much, if any, would be left over, he could not properly be sure that" the remainder, if any, was sufficient or fit for the purposes of trafficking.

20. Relying on all these Grounds of Appeal, Mr Macrae argues that the verdicts are unsafe and unsatisfactory.

21. Mr Kilgour who appears for the Crown accepts that the presumption could only have arisen under section 46(e) and that the amount of the drugs was certainly not 2½ times the amount require to raise that presumption, as stated by the Magistrate. He also is concerned that the Magistrate may have been under the impression that the amount of dangerous drugs in the appellant's possession was much greater in relation to the amount raising the presumption than in fact it was in truth. He doesn't concede the appeal but he understands the concern of Mr Macrae.

22. With great to respect to the Magistrate I consider that the conviction on the A charge is unsafe and unsatisfactory, firstly because the Magistrate was bound to look at the whole of the evidence before concluding that the presumption had not been rebutted and not limit himself to the appellant's answer caution; and secondly because in asituation where the scenario which met the police officer's eye was one of preparation for consumption (a scenario which was accepted by the Magistrate in his statement of findings), the actual amount by which the mixture exceeded the presumptionlevel seas only 0.86 of a gramme. Had the Magistrate appreciated that the excess above the presumption level was so small and if he had directed himself that he wasn't limited to a consideration of the answer to caution, he might well have come to a different conclusion.

23. For these reasons I allow the appeal and set aside the conviction on charge A and substitute therefore a conviction for simple possession of dangerous drugs contrary to Section 8(1)(a) of the Dangerous Drugs Ordinance.

24. It follows from this that the sentence of two years on the A charge is excessive and it is set aside and the sentence of nine months substituted therefor.