CHAN KWAN v. THE QUEEN

CACC000612/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURSIDICTION

CRIMINAL APPEAL NO. 612 OF 1969

 

Between:
	CHAN KWAN	Appellant
	AND
	THE QUEEN	Respondent

Coram: Rigby, S.P.J.

Date of Judgment: 24 September 1969

 

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JUDGMENT

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1. The appellant was convicted upon the charge preferred against him of possession of dangerous drugs for the purposes of unlawful trafficking therein. He was sentenced to 2 1/2 years imprisonment and he now appeals against that sentence.

2. The brief facts of the case were that at the material time the appellant was in the course of serving a sentence of 8 months imprisonment which had been imposed upon him on the 16th April. This offence was committed on the 30th May; after he had therefore been under detention for a period of approximately 5 weeks. The relevant facts were that the appellant was searched by a prison warder whilst he, and others, were apparently waiting to be photographed for prison purposes, prior to being taken elsewhere.

3. In the course of being searched, according to the evidence given by the prison warder, two packets of suspected dangerous drugs were found upon him one in the crotch of his underpants and the other concealed in the sole of the shoe he was wearing. The appellant denied the charges, alleging that the prison warder had quite deliberately and falsely accused him.

4. The learned magistrate accepted the prison warder's evidence and convicted the appellant. In passing upon him the sentence of 2 1/2 years the learned magistrate, not for the first time, has, in support of that sentence, referred to the case of Chu Kee v. The Queen, reported in the 1965 Hong Kong Law Reports at page 600. It is perhaps desirable to say that the facts of that case were a good deal more serious than in the present case, In that case the appellant was a prisoner on remand, awaiting trial before the Supreme Court upon a charge of dealing in dangerous drugs. He had been on remand for a period of two months and, whilst on remand, when searched, he was found to be in possession of 20.1 grams of heroin and 2.7 grams of barbitone. He was sentenced by the learned magistrate to 15 months imprisonment and the learned judge, on appeal by the appellant, increased that sentence to 2 1/2 years imprisonment. It is sufficient to say that the drugs in this case were of a very much lesser quantity; nor was the appellant in this case awaiting trial upon a charge of possession of dangerous drugs.

5. However, having said that, as learned Crown Counsel has pointed out, the offence of being in possession of dangerous drugs whilst in prison - or in prison custody - is a serious offence. I have given consideration as to whether the sentence is not unduly severe in all the circumstances of the case. The quantity found was not of a substantial amount, but it was, of course, sufficient to justify, or to support, the statutory presumption of being in possession of dangerous drugs for the purposes of trafficking therein.

6. If the appellant had admitted possession, but said that the dangerous drugs were for his own use and consumption, it may well be that the magistrate might have accepted that testimony and taken the view that the allegation of possession for the purposes of unlawful trafficking was in fact rebutted. But the appellant's only defence was a total denial that he was ever in possession at all. The statutory presumption therefore arose against him of being in possession for the purposes of trafficking. In these circumstances, I have come to the conclusion that the sentence of 2 1/2 years imprisonment, although undoubtedly severe, is not such as to justify my interfering with it. The appeal is accordingly dismissed.

 

 

Representation:

Appellant in person.

Penlington, P.C.C. for Crown/Respondent.