—————– IN THE COURT OF APPEAL AND —————–
IN THE COURT OF APPEAL
Coram: Hon. Power, Ag. C.J., Nazareth, V.-P. & Stuart-Moore, J.
Date of Hearing: 16 May 1997
Date of Judgment (re: Cr.App. 159/97): 16 May 1997
Date of Delivery of Judgment (Re: A.R. 2/97): 24 June 1997
Date of Handing Down Reasons (re: Cr.App. 159/97): 24 June 1997
Power, Ag. C.J. (giving the judgment of the Court):
1. The applicant was convicted after trial before Judge Surman in the District Court of an offence under s.4(1)(c) of the Dangerous Drugs Ordinance. It was alleged that on 8th August 1996, inside the 9th floor of No.339 Hennessy Road, he did an act preparatory to or for the purposeof trafficking in substances he believed to be a dangerous drug, namely 937.7 grammes of a mixture containing caffeine, antipyrine,paracetamol, theophylline and chlorpheniramine and 123.5 grammes of a mixture containing antipyrine, theophylline and carbetapentane.
2. It was the Crown case that the police raided the premises mentioned in the charge and discovered two bags of a white powder-likesubstance which they suspected to be dangerous drugs. The applicant, who was at the premises together with others, when questionedabout the bags, referred to them as “white powder”. Also discovered on the premises were a large number of small plastic bags andweighing scales. When analysed, the bags were found to contain the substances set out above. None of those substances are chemicalslisted in Part I of the First Schedule of the Dangerous Drugs Ordinance. None were, therefore, dangerous drugs under that Ordinance.
3. In evidence one of the police officers said that the applicant had, when asked about the two plastic bags, said not only that theywere white powder but also that he had to deliver them to others and that he did not consume white powder himself. When arrestedand cautioned he replied, “Ah Sir, it has nothing to do with my wife. I just delivered the white powder for others.”
4. A government chemist gave evidence saying that he was familiar with the substances and that they could be used with heroin as adulterants.
5. The applicant did not give any evidence. The judge accepted the evidence of the prosecution witnesses and was satisfied that theapplicant had said that the bags contained white powder and he took judicial notice of the fact that this term is commonly used todescribe heroin. He was satisfied that the defendant had possession of a substance which he believed to be dangerous drugs for thepurpose of trafficking.
6. Mr. Ross, who appears for the applicant, submits that the conduct of the applicant did not amount to an offence and that he was,therefore, wrongly convicted. Section 4 of the Dangerous Drugs Ordinance reads as follows:
7. The word “trafficking” is defined in s.2 of the Dangerous Drugs Ordinance as follows:
8. Mr. Ross submits:
He concedes that s.4A makes it an offence to hold out something to be a dangerous drug when it is not but submits, correctly, that there was no holdingout in the present case and, anyway, that the applicant was not charged under s.4A.
9. We are satisfied that the argument of Mr. Ross places a much too restrictive interpretation upon the words of s.4(1)(c). It is true that the definition of “trafficking” covers the storing of dangerous drugs or substances believed to be dangerous drugsbut it is also true that storing is an act preparatory to positive acts of trafficking such as exporting or supplying dangerous drugs.The applicant in the present case admitted that he was storing what he believed to be “white powder” preparatory to delivering it.We are satisfied that such conduct can properly be regarded as constituting an act preparatory to trafficking and that it is coveredby s.4(1)(c) of the Ordinance. The applicant was, therefore, rightly convicted.
10. We add only that we find no substance in the suggestion that s.37, which makes it an offence for owners and others to permit storage of dangerous drugs on their premises, deals exclusively with storageand, as this section does not prohibit the storage of substances believed to be dangerous drugs, the Ordinance does not create anysuch offence.
11. We turn now to the Attorney General’s application for review of sentence. The judge, having taken into account the defendant’s clearrecord, his age and the fact that he was recently married and had a newly born child, was satisfied, although probation was not recommended,that the proper course was to order that the respondent be placed on probation for 18 months. It is the contention of the AttorneyGeneral that this sentence is manifestly inadequate and wrong in principle. It is submitted that R. v. Fang Yee-kwok C.A. No. 17 of 1996 (unreported), indicates that, even in a case where a defendant makes a bogus offer to supply dangerous drugsand has no intention actually to do so, a prison sentence is appropriate. In all the respondent had 1,060 grammes of a mixture whichhe believed to be dangerous drugs. This was, in fact, a very substantial quantity more than 1 kg., of a substance which there seemsto be no doubt would have been used to adulterate heroin. This matter does present a difficult sentencing problem but we have nodoubt that a sentence of imprisonment was called for. We considered that imprisonment of four years would have been appropriate butare prepared, given that this is an application for review and that we are substituting a custodial for a non-custodial sentence,to order that the sentence be one of imprisonment for 3 1/2 years.
12. The application succeeds. The probation order is quashed and the respondent is sentenced to imprisonment for 3 1/2 years.
Mr. D.G. Saw, Q.C. & Mr. Liu Yuen-ming (Crown Prosecutor) for the Respondent (Cr.App.159/97)/Applicant (AR 2/97).
Mr. Phillip Ross assigned by D.L.A. for the Applicant (Cr.App. 159/97)/Respondent (AR 2/97).