THE QUEEN v. LEE KWONG MING

HCMA000226/1992

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 176 & 226 OF 1992

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BETWEEN

THE QUEEN
AND
LEE KWONG MING

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Coram: Hon. Penlington, J.A. in Court (sitting as an additional High Court Judge)

Date of hearing: 23 April 1992

Date of delivery of judgment: 23 April 1992

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J U D G M E N T

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1. These are appeals against conviction. The facts of each case were that the appellant was found in the street with packets of heroin.In Mag. App. No. 226/92 he was near the Robert Black Methadone Treatment Centre.

2. In Mag. App. No. 176/92 there were 16 packets containing a total of 3.12 grammes of a mixture of which 2.73 grammes was No. 4 heroin.The trial took place on the 10th July 1991 and that the magistrate, because judgment had not been delivered in the case of Sin Yau Ming, H.C. 289/90 relied, as he was obliged to do at that stage, on the statutory presumptions of trafficking in s. 46(c) and (d) of the Dangerous Drugs Ordinance, Cap. 134, which applied both to the quantity of the narcotic and also to the number of packets.

3. In Mag App. No. 226/92 there was a much smaller quantity – 0.76 grammes of a mixture containing a total weight of 0.53 grammes ofheroin.This was contained in 3 packets which was not enough to raise the presumption, under s. 46(c) but the weight was sufficient, albeit only just, to do so under s. 46(d). Again, however, the magistrate relied on that presumption. The trial in that case took place on 19th July 1991.

4. The appellant was sentenced in the first case to 2 years’ and in the second case to 1 year’s imprisonment to be consecutive withthe first sentence, giving a total of 3 years’ imprisonment for trafficking in a total of 3.88 grammes of heroin.

5. I am informed that the appellant, when he became aware of the decision in Sin Yau Ming, himself wrote to the magistrates asking for leave to appeal out of time which however, for reasons of which I am not aware, wasapparently refused. This was in October. He then asked for legal aid which was commendably given with speed, and the applicationfor leave to appeal out of time was renewed. It was then granted.

6. The Crown’s position, quite rightly in this matter, is that as the trials took place before the decision in Sin Yau Ming was delivered, which held that the passage of the Bill of Rights ordinance had repealed the statutory presumptions relied on in bothappeals as from the date of the passing of that Ordinance, the 8th June 1991, the magistrates had unknowingly relied on presumptionswhich did not then exist. In view of the quantities of drugs involved in both cases, that must be fatal to the convictions.

7. The convictions are therefore quashed and in each case there will be substituted a conviction for simple possession under s. 8 of the Dangerous Drugs Ordinance. The sentences passed will also be quashed and sentences will be substituted in each case which will enable the immediate releaseof the appellant.

8. I would only add that I have been informed that there are other cases where trials were conducted after the 8th June 1991 but priorto the decision in Sin Yau Ming being delivered, where application has been made for leave to appeal out of time, but that these applications are not being dealtwith as speedily as they might be. I think it is quite clear that if magistrates have relied on the presumptions in convicting offendersunder the Dangerous Drugs Ordinance, the repeal of these presumptions clearly affords a good ground of appeal and applications for leave to appeal out of time shouldbe dealt with immediately they are received by the magistrate concerned.

(R.G. Penlington)
Justice of Appeal

Representation:

G.J.X. McCoy (D.L.A.) for appellant

Paul Leung for Crown