THE QUEEN v. LAU MAN CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 474 OF 1990

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded not guilty to a charge that on the 6th December 1989 at the platform of Tai Kiu Market, Yuen Long he had in his possession for the purpose of unlawful trafficking, 11 straw packets, containing a mixture weighing 2.38 grammes of which there was 2.00 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

2. The prosecution evidence was that the Appellant was seen, at the place alleged in the charge, in the evening of the 6th December 1989. The police officers, being suspicious of him, approached revealing their identities and searched him. The packets containing the drugs specified in the charge were then found on him, the drug being No. 4 heroin. On his arrest and caution there and then, he said that the drugs were not for trafficking but for his own consumption. Later when he was taken to the Police Station and a statement was taken from him under caution, he again said that he had the drugs but that he did not have them for the purposes of sale.

3. The Appellant gave evidence and the effect of his evidence was that he was not in possession of the drugs at all and that, because he was scared of the police, he gave the answer after caution that he had the drugs for his own consumption.

4. The learned Magistrate accepted the prosecution evidence, rejected the Defendant's denial of possession, convicted him, and sentenced him to imprisonment for 3 years. The Appellant now appeals against both conviction and sentence, but at the moment I am only concerned with his appeal against conviction.

5. Mr. Macrae, in arguing his appeal against conviction, relies on two main grounds both of which arise from matters mentioned by the learned Magistrate in his Statement of Findings.  In his Statement of Findings, the learned Magistrate, after briefly reviewing the evidence and making certain comments about the Appellant as a witness under cross examination, went on to say this:

"Having no confidence in the Defendant or his evidence and being satisfied that the prosecution had proved their case beyond reasonable doubt, I found that the Defendant had indeed been in possession of the quantity of drugs as alleged.

 

As to whether he had possessed the drugs for the purpose of unlawful trafficking, I heard nothing from either prosecution or defence to suggest that the presumption should not apply. Indeed the nature of the drug and its packaging, together with the Defendants unexplained behaviour waiting in this area, all served to reinforce that he had them for trafficking.

 

Taking the above into account and the presumptions arising under the Ordinance, I had no hesitation in finding the charge of possession of dangerous drugs for the purpose of unlawful trafficking proved."

6. In his first ground of appeal, Mr. Macrae criticizes the statement that the learned Magistrate heard nothing from either prosecution or defence to suggest that the presumption should not apply. Mr. Macrae's submission is that the learned Magistrate had indeed heard something to suggest the presumption did not apply. He had heard a part of the prosecution evidence to which I did not prefer earlier, namely that the Appellant on his arrest had on him only a small amount of money. Also from the prosecution evidence was the Defendant's answer to the caution in which he said that he had the drugs for his own consumption.

7. Mr. Macrae agreed during the course of argument that, if the learned Magistrate had said "nothing of any weight", his point would have no substance. He submitted, however, that if the learned Magistrate had added that phrase, it would have shown that the Magistrate had made an evaluation of the evidence.

8. I do not think there is anything in this point because the two statements by the Appellant under caution consisted of admissions and exculpatory matter.  The exculpatory matter, being self-serving, was of practically no weight whatsoever in the circumstances of this case. The fact that the Defendant had very little money on him in itself was a matter of no significance standing on its own. I can, therefore, see nothing wrong with the statement that he heard nothing from either prosecution or defense to suggest that the presumption did not apply.

9. The second ground of the appeal is that the learned Magistrate revealed a flaw in his reasoning when he said that the nature of the drug was a factor which served to reinforce the presumption that the Appellant had the drugs for trafficking.  It is Mr. Macrae's submission that in using that expression, the Magistrate revealed that he was probably influenced by the fact that the drug was No. 4 heroin arising from a view once held by the courts that No. 4 heroin was not the type of drug used by addicts for their own consumption. Now, as the result of the material put before the Court of Appeal in Lau Tak Ming, we know about 51% of addicts do consume No. 4 heroin.

10. I do not think that the Magistrate has fallen into that error at all. In his Statement of Findings he refers to the nature of the drug and its packaging. If 51% of heroin addicts consume No. 4 heroin, there is still quite a large market for No. 3. No. 4 heroin may therefore be possessed for consumption, processing into No. 3 or for resale as No. 4. By his reference to the nature or the drug and its packaging, the Magistrate must mean that the packaging indicates possession for a processing or marketing purpose - a factor which does serve to reinforce the presumption that the Appellant had the drugs for trafficking. I think that there was no flaw in his reasoning and the factors to which he referred were matters which he was entitled to take into account as matters capable of reinforcing and which did reinforce the presumption in this case.

11. Those are the only grounds on which Mr. Macrae attacks the conviction. I find there is no substance in either of them and accordingly fine no merit in the appeal against conviction. It is, therefore, dismissed.

12. In his appeal against Sentence the Appellant's principal complaint is that the learned Magistrate made a notional conversion of No. 4 heroin into No. 3 and, having found that it would amount to 30 grammes of No. 3, imposed a sentence of imprisonment for 3 years.

13. Mr. Macrae submits, and Mr. Li for the Respondent agrees, that the Magistrate should only have made such a notional conversion, if he had before him, either evidence of how the No. 4 would convert or agreement between the parties as to the result of such conversion. If that notional conversion is ignored in this case, as it should be because there was no such evidence or agreement, then, Mr. Macrae submits, since the Appellant's record shows that he is obviously a drug addict, the learned Magistrate applying the guidelines from Chan Chi Ming, should have decided that the appropriate sentence was within the range of 2 to 2 1/2 years. Mr. Macro's other submission was that, if the learned magistrate based the sentence on the quantity of the narcotic which the Appellant had in his possession, he would have decided again that the appropriate period of imprisonment was within that range. In any event his submission is that this Appellant should have been sentenced at the lower end of the range of 2 to 2 1/2 years. Mr. Li points out that in Char Chi Ming, it was said that the court should have regard to the convicted person's record and in this case he drew to my attention the fact that the Appellant has a record of 4 previous drug convictions.

14. I think that in this case the proper sentence on principle should have been within the range of 2 to 2 1/2 years. I cannot see any reason why the sentence should be above the lower rung in that range. I allow the appeal against Sentence. I quash the sentence and substitute, therefor, a sentence of imprisonment for 2 years.