WONG TIM v. THE QUEEN
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CACC000228/1975
IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 228 OF 1975
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| BETWEEN | ||
| WONG TIM | Appellant | |
| and | ||
| THE QUEEN | Respondent |
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Coram: Huggins, J.
Date of Judgment: 16th April 1975.
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JUDGMENT
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1. The Appellant was charged with possession of dangerous drugs for the purpose of unlawful trafficking. He admitted possession but denied his possession was for the purpose of trafficking. The matter came on for trial and the Crown relied upon the presumption in s.45 of the Dangerous Drugs Ordinance. The Defendant failed to rebut the presumption that he had the drugs for the purpose of trafficking and he was duly convicted. He was sentenced to twelve months' imprisonment.
2. In his Reasons the learned magistrate said that in mitigation he took into account, in the Defendant's favour, that there had been no positive evidence of trafficking. With respect to him I do not think that that was a matter properly to be taken into account in mitigation. The offence charged, and the offence which was proved, was that of possession for the purpose of trafficking. The fact that he was not actually seen to be trafficking is immaterial. It is most important, therefore, that in deciding whether or not such a charge is duly proved, a magistrate should be careful in considering whether the defendant has discharged the burden of proof which is upon him. If there is a probability that he did have the quantity of drugs found for his own use he is not guilty of the offence. But the courts must have regard to the declared intention of the Legislature, which has said that where the presumption is not rebutted then the defendant shall have been proved to be guilty of possession for the purpose of trafficking. The absence of positive evidence of trafficking is immaterial both to the proof of the offence and to the sentence which ought to be imposed. The maximum sentences prescribed for unlawful trafficking and possession for the purpose of unlawful trafficking are the same.
3. The sentence in this case, therefore, was lighter than the magistrate probably would have imposed had he not misdirected himself, but in all the circumstances I do not intend to increase that sentence. There is certainly no ground upon which I could reduce it.
4. The appeal is dismissed.
16th April 1975.
Representation: