THE QUEEN v. CHEUNG HING-FAT

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H E A D N O T E

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POSSESSION OF DANGEROUS DRUGS FOR UNLAWFUL TRAFFICKING - REBUTTAL OF PRESUMPTION - MAGISTRATE SHOULD LOOK AT ALL THE EVIDENCE, INCLUDING THAT LED BY PROSECUTION.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 822 OF 1989

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J U D G M E N T

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1. The appellant was convicted by Mr Lee at North Kowloon Magistrates Court of possession of dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134. He was sentenced to two years imprisonment and now appeals against both conviction and sentence.

2. The appellant was stopped and searched because he looked suspicious to two plain clothes police officers on patrol in Sek Kip Mei Estate. Four paper packets, containing a total of 1.28 grammes of salts of esters of morphine, were found in a cigarette packet in his pocket. He told the officers that the drugs were for his own consumption.

3. The defence at the trial was that the appellant had been framed by the police, that he was not searched and that the drugs were not in his possession. The magistrate believed the police evidence, disbelieved the appellant, found that "no attempt had been made to rebut the presumption" and convicted the appellant,

4. Mr Grounds, for the appellant, submits that this was the wrong approach and that the magistrate failed to look at all the evidence when considering whether the presumption had been rebutted. It was for this reason that Duffy J. allowed the appeal in R. v. Wong Hing, MA 1792 of 1988.

5. Counsel for the Crown concedes that the amount was very small, that there was nothing to indicate trafficking and that the magistrate did not direct his mind to the proper test.

6. I agree that, had he done so, he might have found that, although the appellant was not worthy of belief, it was more probable than not that the drugs were for the appellant's own consumption. I therefore allow the appeal against conviction and substitute a conviction for simple possession, contrary to section 8 of the Ordinance.

7. The appellant has seven previous convictions, three of which are drug related. He is a salesman earning $6,000 per month. He has recently married and is expecting his wife and baby to arrive shortly from China to live with him in Hong Kong.

8. Having regard to the fact that he has already served four months of his sentence, I think the proper course is to order his immediate release. The appeal against sentence is also allowed.