THE QUEEN v. RAYMOND JOHN SPENCER

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke, V.-P.:

1. Raymond John Spencer was the first named defendant of four who appeared for trial in the District Court before Miss Cannon sitting as a Deputy Judge of that court. The charge sheet contained two counts, the first being one of joint possession of dangerous drugs for the purpose of unlawful trafficking and the second joint possession of equipment fit and intended for the injection of dangerous drug.

2. On the 21st March 1987 a party of police searched premises at Block F, 8th Floor, No. 35 Kimberley Road, Tsim Sha Tsui. The Applicant was present as were three other persons named in the charge sheet., In the kitchen were found 11 syringes, each containing dangerous dings in e total quantity of 4.28 grammes of a mixture containing salts of esters of morphine. We do not know the quantity in each individual syringe. Also found were two phials each of which contained.a mixture of salts of esters of morphine with a total weight of 23.40 grammes.

3. In a bedroom, in a paper bag on the floor, were found six plastic bags also containing a mixture of salts of esters of morphine - this in a total weight of 41.62 grammes. The Applicant had a key to the grill of the premises on his person.

4. At trial the Applicant admitted simple possession of the drugs and possession of the equipment. It would seem that, upon those admissions, the Crown offered no evidence against the 2nd, 3rd and 4th named defendants. A Summary of Facts was admitted as was the Government Chemist's Certificate together with the exhibits found. The only issue at trial,'the presumptions under section 47 being accepted as having been raised,. was did the evidence of the Applicant rebut the presumption of possession for the purposes of trafficking,. The trial judge found that it did not.

5. The Applicant now seeks leave to appeal out of time against conviction on the first count.

6. Having asked for Drug Addiction Treatment Centre Reports, a Probation Report and a Psychiatric Report the trial judge, on the 12th September, sentenced the Applicant t a period of 3 years' imprisonment on the possession count and 3 months on the equipment count, the sentences to run concurrently. The Applicant, should it be necessary, also seeks leave to appeal against. sentence.

7. The application for leave to appeal against conviction out of time was filed on the 18th December 1987. The delay came about thus. When this matter first came before another Division of this Court on the 17th December 1987, the application then being in respect of sentence only, one of the members of that Court raised a point which had not been taken by, nor indeed had it occurred to, anyone before then. It was suggested that the count relating to possession for the purpose of unlawful trafficking, which alleged a total mixture of 69.28 grammes containing 5.53 grammes of salts of esters of morphine, might be, in the light of the evidence, duplicitous. Mr. Dykes who appeared for the Crown before us takes no point on delay. It is sufficient to say that, had we been minded to grant leave, we would have considered the delay to have been satisfactorily explained.

8. Mr. Remedios who appears for the Applicant in this Court has suhmitted that, as the sole, issue was the rebuttal on the balance of probabilities of the presumptions which undoubtedly arose, then had that count been split into two - the first the quantities of drugs on the items.found in the kitchens, the second the quantity found in the bedroom - it might well have been easier for the Applicant to rebut the presumptions on one or other or both of the split counts.

9. In Wilson⁽¹⁾ Browne L.J. considered duplicity and said :

"The word duplicity is used in a rather ambiguous sense, it seems to us, in the authorities and textbooks. First there is a case where it appears on the face of the indictment, or particulars of the indictment, that a count is charging more than one offence. It may sometimes be legitimate to look at the depositions in this context,. (See Greenfield (1973) 57 Cr.App.R. 849; [1973] 1 W.L.R. 1151). That has been referred to in the course of the argument as true duplicity: Secondly, there is a case where, although the indictment is good on its face, it appears at the close of the prosecution case that the evidence establishes that more than one offence was committed on the occasion to which a particular count relates. Perhaps that is best described as divergence or departure, but it often seems to he called duplicity. In our judgment, in whatever sense one uses the word duplicity, it is confined to those two situations. But even if a case is not within either the first or the second of those situations, there may be cases where, in the interests of justice, it may be right to make the prosecution split a count or elect,on what particular charge they are going to proceed.

10. Mr. Remedios does not suggest that the count here falls within either of the two categories of which Browne L.J. first made mention. He does rely on.that part of the passage just cited which reads:

"There may be cases where, in the interests of justice, it might be right to make the prosecution split a count …".

11. There was no application made at trial for such a split. Subsequent to the December hearing a full transcript was directed to he produced and we now have it. Mr. Remedios suggests that it is only after evidence has been given that any application for a split could be made. The prosecution are not in a position to know what the defence is and here, if the applicant had been heard to say that the eleven syringes with their contents were for personal consumption and the drugs found in the phials had been broken up also for that purpose then his contention that he possessed that combined quantity of drugs for personal consumption, and not for the purposes of trafficking? would have been greatly strengthened. The quantity in the second suggested count would also be much more easily explained as a form of reserve.

12. That is not what the applicant did. say. His evidence, and his answer in pleading to the first count, was that all of the drugs were for personal consumption.

13. The decision on the issue at trial depended upon the credibility of the applicant. The trial judge found against him. Even if the applicant had given the evidence which Mr. Remedios rather wishes he bad the quantities found in the kitchen and the bedroom individually were each sufficient to raise the presumptions.

14. In our judgment this was not a matter where, had an application to split the first count been made, it would or should have been successful nor, in our view, even if a split had taken place could there he any certainty that individual convictions of possession for the purpose of unlawful trafficking would not have been come to.

15. Having considered Mr. Remedios's submissions, which he accepts have some rather stiff hurdles to clear before they could have any hope of success, we refused leave to appeal out,of time against conviction.

Sentence

16. This is a pathetic case. The helpful and extensive report of the Probation Officer shows the applicant, who is aged 56, to have been addicted to drugs for over thirty years. He is also an alcoholic. He has convictions for simple possession of dangerous drugs, the last of which, and indeed his last appearance in court, was in 1979. He had various short term jobs and has been unemployed for the last four years living on hand outs from his family. He had made a number of unsuccessful attempts to wean himself from drugs.

17. The premises where he was found was the flat of an elderly man who was an epileptic. He allowed the applicant, and that which the Probation Officer describes as "the rest of his company", to live there free of charges for the last five years in return for their company and for the rendering, of personal care to him. That man had since died.

18. The applicant's father was an American, stationed in Canton before the Second World War. When he married the applicant's mother the family - consisting of eight children, two of whom are now dead and a third who has been in Castle Peak Hospital for over twenty five years - settled down in Hong Kong. The father died in 1939. The mother attempted to bring up the family on her own and died in 1948. At an early age, under the influence of his eldest brother now dead, the applicant' became a drug addict and turned to petty crime to satisfy his drug addiction.

19. We accept that possession of drugs for the purpose of unlawful trafficking is a serious offence and that generally the guidelines in Chan Chi Ming⁽²⁾ should be followed. But, as has been said before, guidelines are not immutable and they can, for good reasons in particular cases, be departed from - he that a departure to a higher or a lower sentence than the range as set out in Chan Chi Ming⁽²⁾.

20. With respect to the trial judge this is a case where, hearing in mind the background of the applicant, the nature of the offence and the quantities concerned, a measure of departure can be justified. In so saying we acknowledge the fact that a judge must honour a verdict, he the verdict that of a single judge or of a jury. But we do not consider that this case needed as the trial judge thought "a strongly deterrent sentence". The Applicant clearly assumed the blame on behalf of the other persons found in the flat, who themselves are addicts and one of whom was his nephew.

21. We consider the sentence to have been too harsh. We reduce the sentence on the first count to one of 18 months' imprisonment leaving undisturbed the sentence on the second count which will he concurrent with it.

22. We grant the application, give leave, treat the hearing as the hearing of the appeal and allow the appeal to the extent indicated.

(1) [1979] 69 Cr. App. R. 83 at 85

(2) [1979] H.K.L.R. 491