LEE YEE HUNG v. THE QUEEN

CACC000520/1971

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 520 OF 1971

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BETWEEN
	LEE YEE HUNG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.

Date of Judgment: 1st September, 1971.

 

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JUDGMENT

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1. The appellant was convicted of possession of dangerous drugs and sentenced to 9 months imprisonment, against which sentence he now appeals.

2. The only evidence as to whether or not the appellant is in the habit of smoking dangerous drugs came from the appellant himself, who said that he smoked heroin at the age of 19 for one week and has not used dangerous drugs since then. He is now 23. The medical officer of Victoria Remand Centre was of the opinion that the appellant is not drug dependant.

3. In his Statement of Findings the learned Magistrate said:

"	I was prepared to consider admitting defendant to Tai Lam Drug Addiction Treatment Centre. However notwithstanding his admission that he commenced smoking heroin at the age of 19 defendant insisted that he had only taken drugs for one week and has not used them since. It is not surprising that the medical officer was of the opinion that he was not a drug dependent (he having then been in custody for 37 days) and that accordingly he was deemed not suitable for Tai Lam.
	In these circumstances a prison sentence appeared inevitable. At his age a moderately lengthy sentence is desirable if there is to be any real hope of dissuading him from taking drugs in the future. In my view the defendant is in fact a taker of drugs. If however he was not using the drugs for his own purpose his possession of drugs must have been for a more sinister purpose. In either case a sentence of 9 to 12 months appeared appropriate. As the defendant had been in custody at the time of sentence for some 37 days, I imposed a sentence of 9 months."

The learned Magistrate's personal opinion that the defendant is in fact a taker of drugs flies in the face of the only evidence available upon that question and to sentence him to a term lengthy enough to dissuade the appellant from taking drugs in the future is to relate the length of sentence to the learned Magistrate's suspicion. The further suggestion that if the appellant was not using the drugs for himself, his possession thereof must have been for a more sinister purpose (presumably meaning sale) is equally based on suspicion and it has to be borne in mind that the appellant was not charged with possession of dangerous drugs for the purpose of trafficking; the sentence was based either upon a mere suspicion that he is drug dependant or alternatively upon the suspicion that he had the drugs for sale. There is no evidence (beyond the actual possession of drugs in a small quantity) to render either alternative more than a suspicion, and suspicion is not enough.

4. The appellant was found guilty of possession of a small quantity of dangerous drugs and this is his first such offence. He was sentenced on the basis of a mere suspicion of being in need of the opportunity to break himself of a habit not proved to exist, or alternatively to have had the drugs for a purpose not charged. I allow the appeal against sentence and reduce the sentence of 9 months imprisonment to one of 4 months imprisonment.

 

Representation:

Appellant in person

Winter, C.C. for Crown.