THE QUEEN v. YU CHUN WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 20 OF 1988

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J U D G M E N T

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1. The appellant was convicted of possession of 15.04 grammes of dangerous drug's for the purpose of unlawful trafficking, contrary to Section 7(1), and of apparatus fit and intended for the injecting of dangerous drugs, contrary to Section 36(1) of the Dangerous Drugs Ordinance, Cap. 134. He was sentenced to two years' imprisonment on charge A and to six months concurrent on charge B.

2. The appellant admitted possession of the drugs and apparatus and, in an attempt to rebut the presumption, gave evidence that the former were for his own consumption. He went on to say that he intended to take them to China, where he hoped to cure his addiction by gradually cutting down his consumption, away from the temptingly easy source of supply in Hong Kong.

3. The magistrate accepted this evidence, but considered that the appellant had not established that he might not supply at least some of the drugs to others before he went to China.

4. In his statement of findings the magistrate says that, at the time of the trial, he was not aware of R v. Lau Chi-sing⁽¹⁾. In this case the Court of Appeal makes it clear that, since 'exporting' is included in the definition of trafficking in Section 2 of the ordinance, a person is guilty of trafficking if he takes dangerous drugs out of Hong Kong, even if they are for his own consumption.

5. The court pointed out, however that, where drugs were exported for personal consumption, that would be a factor in mitigation of sentence.

6. The magistrate correctly says that, in the light of this decision, the appellant was properly convicted on his own evidence. He also says that, had he accepted a plea of guilty on this basis, he would have asked the prosecutor whether he accepted the appellant's story and, if not, would have gone on to hear evidence on this limited issue for the purpose of sentence.

7. In these circumstances, Mr. Forrest, for the appellant, applied for an extension of time to appeal against sentence. This was not opposed by counsel for the Crown, who conceded that she did not challenge what the appellant had told the magistrate.

8. I therefore allowed the appeal on charge A and reduced the sentence to 12 months' imprisonment.