1997, No. 300



Coram: Power, V.-P., Mortimer, V.-P. and Mayo, J.A. in Court

Date of judgment: 5 December 1997




Mortimer, V.-P. (giving the judgment of the Court) :

1. On 5 May 1997 the applicant was convicted of trafficking in a mixture of 57.17 grammes of heroin containing 15.59 grammes of thenarcotic by His Honour Judge Davies in the District Court. He was sentenced to 4 1/2 years.

The facts

2. On 16 November 1996 the police found three packets of heroin wrapped in newspaper in a cable tray above a parking lot in Shatin.They kept observation of those three packets and at about 10.45 p.m. the applicant came and retrieved them. He was stopped and searched.The drugs were found in his jeans pocket. He was cautioned. He admitted the packets contained drugs but said they were not for sale.They were for his own consumption. He repeated that admission at the police station but again contended that they were for his ownconsumption. He had bought them two nights before in Hong Lok Street from a man whom he just knew as “Ah Shing”.

At trial

3. He maintained the same account at trial and he gave evidence to the same effect. The only issue at trial therefore was whether hehad the drugs for trafficking or whether he was just in simple possession of them.

4. The judge having heard the evidence found the applicant guilty of trafficking. There were four matters that he relied upon and whichhad been relied upon by the prosecution to show that he was trafficking rather than in simple possession:

(1) The drugs were packeted in the three packets.

(2) The quantity of 57.17 grammes of the mixture.

(3) The average street price of heroin at the time compared with the applicant’s evidence of the price he paid.

(4) The applicant had removed all the drugs from the cable tray whereas his account was that he only needed a small part of them tosatisfy his addiction for the following day.

The application

5. Mr Percy appears on his behalf on this application. He submits that in the absence of the evidence as to the street value of suchdrugs in mid-November 1996, it was not open to the judge to convict on the remaining evidence. Mr Percy relies upon what the judgesaid at the end of his reasons for verdict:

“I have considered all the evidence and I am satisfied that cumulatively these inferences do point conclusively to the defendant possessingthese drugs for trafficking. I find the evidence of the officer from the Narcotics Bureau, as to the average cost of this amountof heroin in mid-November 1996, being of weight and particularly significant indicating that this defendant could not have affordedto purchase this amount for his own consumption from legitimate income and that he possessed the drugs for sale to others.”

We agree with the submission that but for the evidence of the officer of the Narcotics Bureau and the view of the judge took of thathe would not have convicted. So we turn to consider that evidence.

The evidence of street value

6. It is a type of evidence which has been given in Hong Kong courts for a very long time. It simply amounts to this. An officer fromthe Narcotics Bureau collates all the information over the relevant period of seizures of drugs at street level of mixtures of 5grammes or below. He then considers the scientific evidence and works out the average concentration of narcotic in the mixture. Thenhe collates all the evidence or information received from those who have been arrested upon the price which they say have paid. Bythose means he works out what is said to be the average street cost of drugs at that time.

Counsel’s submissions on the evidence

7. Mr Percy makes a number of points about that evidence. We note first that he does not submit, as was submitted below, that this isnot expert evidence which the court can receive. So we do not deal with that particular point.

8. Mr Percy submits that the judge gave more weight to this evidence than it would bear. He points out first, that the figures are averagefigures. Therefore when the expert concluded that to buy the relevant quantity of heroin mixture on the street in mid-November 1996,it would cost $13,500, the judge ought to have taken into account that with the figure being an average, there must have been asmuch heroin purchased above that figure as was purchased below it.

9. Further, Mr Percy argues that the average concentration of narcotic at the relevant time in the street purchases came to just shortof 45% whereas the mixture purchased by the applicant was 34%. There was a 30% difference in purity.

10. Finally – and perhaps most importantly – the expert’s figures were based upon seizures of below 5 grammes. That was definitely dealingwith retail sales only at street level. When the upper limit is 5 grammes, many of the purchases must have been of very small quantitiesindeed. It would be wrong to assume, for example, that the price was an average price for the purchase of 5 grammes. It would benot unreasonable to think that the experience of the courts is that for tiny quantities, the price is higher.

11. The evidence given by the applicant was that he had purchased the drug on the basis that he would receive a 50% reduction becauseof the bulk. He said that the reason he bought drugs of this quantity was in order to save himself money.

12. The evidence was that the applicant earned about $15,000 per month. He had outgoings of between $4,000 to $5,000 a month. Relyingon the Narcotics Bureau evidence that the average cost of the drugs would be about $13,500 and comparing that with the earnings andthe available money which the applicant said he had, the judge came to the conclusion that he could not accept the applicant’s evidence.

“The defendant himself has said in evidence that he only spent $3,000 on the purchase of this amount, being a 50 per cent reductionfor a purchase in bulk. By any standard that is very substantially less than the sum quoted by the expert as the average cost forthat period of 1996. In this regard I do not believe the defendant’s evidence as to cost.”

It is clear, therefore, that the judge may well not have been comparing like with like. The full price – which the applicant testifiedto – would have been $6,000. If one takes into account the fact that the figures from the expert were average and that the concentrationof narcotic in that average was much higher, one can immediately see that the judge’s comparison of $13,500 with the applicant’sevidence was, perhaps, not as valid a point as he considered it to be. As he considered this to be of particular significance, wehave reached the conclusion that this conviction is not safe on the reasons given by the judge.

13. In those circumstances we treat this application as the appeal. We allow the appeal against conviction.

14. The conviction for trafficking is quashed and the applicant is convicted of simple possession. Bearing in mind his plea of guiltyand the fact that he indicated from the time of his arrest that he was in simple possession of the drugs, we substitute a sentenceof 16 months.

(N.P. Power) (Barry Mortimer) (Simon Mayo)
Vice President Vice President Justice of Appeal


Mr Duncan Percy (DLA) for Applicant

Mr P.S. Chapman, SADPP (DPP) for Respondent