ATTORNEY GENERAL v.SIN CHI KEUNG

IN THE COURT OF APPEAL

1994, No. 178
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. We are here concerned with the Attorney General's appeal by way of case stated, as well as the respondent's application for an order dismissing or staying the Attorney General's appeal on the ground that it is incompetent by reason of the Attorney General's failure to comply with the time limit of seven days stipulated by section 84(a) of the District Court Ordinance, Cap.336 for making an application to a District Judge to state a case and his failure to obtain an extension of time from a judge of the Supreme Court to make such application out of time.

2. We shall first deal with the respondent's application before coming to the case stated.

3. On 21 February 1994, the respondent was tried before Judge Hawkes on a charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134 ("the Ordinance"). He was acquitted of trafficking but convicted of possession of a dangerous drug under section 8. On 8 March 1994 he was sentenced to imprisonment for two years. On 10 March 1994 the Attorney General applied to the District Judge to state a case. On 29 April 1994, the case stated was sent to the Registrar.

4. Section 84(a) of the District Court Ordinance Cap.336 provides:-

"An appeal shall lie at the suit of the Attorney General to the Court of Appeal against a verdict or order of acquittal, which shall include any order quashing or dismissing a charge for any alleged defect therein or want of jurisdiction. Such an appeal shall relate to matters of law only and the following procedure shall apply thereto-

(a) within 7 clear days after the reasons for a verdict have been recorded or after the order of acquittal, or within such further period as a judge of the Supreme Court may, whether before or after the expiration of such period, allow, an application may be made in writing to the judge to state a case setting forth the facts and the grounds on which the verdict or order was arrived at or made and the grounds on which the proceeding is questioned for the opinion of the Court of Appeal; and the provisions of sections 106 to 109 inclusive of the Magistrates Ordinance (Cap 227) shall apply, mutatis mutandis, to the preparation, amendment and setting down of such case stated;

5. It is the respondent's contention that the seven days ran from 21 February 1994 when he was acquitted of the trafficking charge. Mr Cross contended on behalf of the Attorney General, however, that the application for a case stated was timeous in that the seven days did not begin to run until the final disposal of the case, i.e. on 8 March 1994.

6. He submitted that the legislature could not have intended that time should begin to run until the final determination of the case, which in the present instance was the date on which sentence was passed in respect of the lesser offence of simple possession. The rationale for this is that an accused might well entertain a justifiable sense of grievance, if a case stated is pursued when the court has not finally determined all charges against him or passed sentence on him.

7. In support of this contention Mr Cross referred to section 105 of the Magistrates Ordinance Cap 227 under which the aggrieved party is granted 14 clear days "after the hearing and determination by the magistrate of the complaint, information, charge or after proceeding" within which to apply to the magistrate to state a case.

8. We find no force in this submission. In our view no reasonably minded person in possession of the facts surrounding the circumstances in which a case stated is applied for could feel any justifiable sense of grievance as a result of a statutory requirement that the Attorney General be required to apply for a case stated earlier rather than later.

9. Although there does not seem to be any obvious reason for making time begin to run earlier in a District Court case than in one in the Magistrates court, it is clear that this is not the only distinction between the two pieces of legislation. We note that in a District Court case only 7 days are granted within which to apply for a case stated whereas in a Magistrates Court case 14 days are allowed. Whatever the reasons might have been for making these distinctions, the wording of section 84 is clear and unambiguous. The Attorney General's application was therefore out of time.

10. The next question was whether we, sitting in the Court of Appeal, have the power to extend time. Mr Dykes for the respondent says that only "a judge of the Supreme Court" may extend time, but not three judges sitting in the Court of Appeal, albeit they are all Supreme Court judges. There is no substance in this contention. In the light of the misunderstanding of the time requirement under section 84 and the need to dispose of the point sought to be argued we granted an extension of time.

11. The respondent's application to stay or dismiss the appeal by way of case stated is accordingly refused.

12. The evidence adduced before the judge was that in the small hours of 4 November 1993 a party of police who had been keeping observation of the respondent intercepted and searched him. They found in his coat pocket 27.34 grammes of salts of esters of morphine contained in a number of plastic straws. Under caution he said that he had purchased the drugs for his own consumption and had made the purchase in bulk because it was cheaper to do so.

13. The respondent did not give evidence.

14. By section 2 of the Dangerous Drugs Ordinance, "trafficking" is defined as follows:-

""trafficking', in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug or possessing the dangerous drug for the purpose of trafficking, and 'traffic in a dangerous drug' shall be construed accordingly."

15. The simple point of Mr Cross' submission is that the respondent had "procured" the drug. Since this was conduct that fell within the definition of "trafficking", the judge should have convicted him of the offence of trafficking in a dangerous drug as charged, notwithstanding that he had acquired the drug for his own consumption.

16. In support of his contention Mr Cross cited R. v. Mills [1963]2 WLR 137 where Parker CJ said (at p140):-

"As has already been said 'supply' must denote the parting of possession from one person to another and, in those circumstances, there seems no reason to give the word 'procure' anything but its ordinary meaning of getting possession thereof from another person."

17. Mr Cross also sought to place reliance on Attorney General v. Lau Chi-sang [1987] HKLR 703 in which this court held that taking or causing a dangerous drug to be taken out of Hong Kong constituted exporting the drug, irrespective of whether the defendant intended to use the drug for his own consumption overseas. We have no difficulty in distinguishing that case from the one now before us. The export of dangerous drugs from Hong Kong has international implications. And the import of dangerous drugs into Hong Kong adds to the pool of drugs available for distribution here. Clearly the legislature intended to make a distinction between importers and exporters of dangerous drugs on the one hand and those persons who obtain them within Hong Kong for personal consumption in Hong Kong on the other.

18. The New Shorter Oxford English Dictionary gives the relevant meanings of "possess" as "take possession of, seize, come into possession of, obtain, gain", and those of "procure" as "obtain, esp. by care or with effort; gain, acquire, get".

19. The judge observed in his stated case:-

"It has long been the case that if a defendant can establish that he had the drugs in his possession for his own consumption then it is not trafficking. The buying of one gramme only would amount to trafficking if the prosecution's contention was correct. I did not accept that the legislature intended that an admission to purchasing dangerous drugs would amount to 'procuring' and accordingly came within the statutory definition of 'trafficking'."

20. We agree. In our judgment the word "procure" in the definition of "trafficking" cannot be read without regard to the context in which it appears. It is plain from the last category of conduct to which the definition refers that possession simpliciter of a dangerous drug cannot amount to trafficking in that drug. Indeed, the offence of simple possession of a dangerous drug is made an offence by virtue of section 8 of the Ordinance. For possession to amount to trafficking the possessor must have the drug for the purpose of trafficking.

21. That being so, we are of the opinion that, since possession involves the element of procurement, the legislature must have intended, for the purpose of the definition, that the word "procure' should bear the meaning of acquiring for a purpose other than that of using the drug for personal consumption, such as supplying it to another or using it in the manufacture of a variant of the drug .

22. The question asked in the case is:-

"Whether I erred in law in holding that the purchase of drugs does not amount to 'procuring' within the meaning of section 2 of the Dangerous Drugs Ordinance?"

23. For the reasons we have given our answer is "no".