KAM CHAT v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 123 OF 1973

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BETWEEN
	KAM Chat	Appellant
	and
	THE QUEEN	Respondent

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Coram: Leonard J. in Court

Date: 2^nd March 1973

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JUDGMENT

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1.  This is an appeal against a sentence of three years’ imprisonment, the appellant having been found guilty in the magistracy on a charge of being in possession of dangerous drugs for the purposes of unlawful trafficking therein. He had originally pleaded guilty to possession of the drugs simpliciter but a plea of not guilty was entered on his statement that he had them for his own use. The brief facts were that the appellant on the 4^th January 1973 at premises at Cheung Wong Road, Kowloon outside No. 9, Cheung Wong Road was found lying on a bed. He was searched and in his possession were found two packets of suspected dangerous drugs. These two packets were found to contain respectively 2.8 grammes of a mixture containing 1.4 grammes of barbitone and 10.1 grammes of a mixture containing 4.5 grammes of salts of esters of morphine. Their possession therefore gave rise to the presumption of possession for the purposes of trafficking a presumption which the learned magistrate quite correctly in my view found not to have been rebutted. The appellant has a bad record 18 previous convictions most of which were for possession of dangerous drugs. His first conviction for possession of dangerous drugs was in 1956 and his last conviction was on the 14^th of March 1972 when he was sentenced to nine months’ imprisonment. He must on some of the other occasions have been found guilty of possession of relatively large amounts. I say this because a sentence of fourteen months’ was passed on him in 1969 and sentence of eighteen months in 1963. He is aged 49 years and has obviously been an addict for a long time.

2.  A fact to which the learned magistrate does not advert in his statement of findings is that the appellant is unfortunately blind. This failure has caused me some concern and Mr. Duckett for the Crown has very fairly indicated that it is also a factor which causes him concern. Again although the quantity of drugs is well above that giving rise to the presumptions it is a relatively small amount. I appreciate the dangers of leniency towards those suffering from disability when found guilty of possession for the purposes of trafficking – in that the persons in control of a trafficking ring will be more likely to use persons suffering from disability if leniency is extended towards them. At the same time I am quite satisfied that in all the circumstances of this case the sentence of three years imposed is manifestly excessive. I consider that a proper sentence to impose is one of eighteen months’ imprisonment. That is a not unusual sentence in an ordinary case of possession by an addict for the purpose of trafficking where the fact of possession is not disputed and the presumption is applied. It is not so unduly lenient as to make the appellant a natural prey to those organizing a drug ring. The appeal will be allowed and the sentence quashed and a sentence of eighteen months’ imprisonment substituted therefor.

(P.F.X. Leonard) Puisne Judge

Appellant in person.

Mr. Duckett, S.C.C. for Crown/Respondent.