THE QUEEN v. KONG FU

IN THE COURT OF APPEAL

1987, No. 26
(Criminal)

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THE QUEEN

And

KONG FU

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JUDGMENT

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Penlington, J.:

1. This was an application, originally for leave to appeal against both conviction and sentence, but the application for leave to appeal against conviction is abandoned and stands dismissed.

2. The facts of' the matter were very simple. The applicant was stopped and searched by, police officers, and 38 grammes.of dangerous drugs was found on him consisting of a mixture containing 4 grammes of heroin. The applicant pleaded not guilty to the charge of being in possession of these drugs for the purpose of trafficking and his defence was based on an allegation that these drugs were planted on him by the police officers and he was not in possession at all. In his grounds of appeal, however, he says that he is a drug addict and the drugs were for his own consumption. That be is a drug addict, and has been so for many many years, is quite clear from his 28 previous convictions mainly for drug related offences, the first of which was when he was only 12 years of age. This factor is emphasized to us by Mr Hemmings who appears for him today.

3. Mr Hemmings argues firstly that this was a very weak mixture, only 10% of the mixture being heroin, and that although it has been held that it is the mixture that the court should look at, not the content, nevertheless, it could be that a substantial percentage of this mixture would have been used by the applicant himself, and that all of it would not have been for the purposes of sale. We think, however, that is inviting the court to speculate; the fact is that he was in possession of this amount and was convicted of being in possession for the purposes of trafficking.

4. Mr Hemrnings then points to the applicant's sad history and from a very early age he has obviously been addicted. It could well be that at the date of that first conviction, in 1959, there were not the facilities or the institutions which are now available for persons who are of tender years and who have obviously got a potential drug problem. Nevertheless we must look at the facts as they are today. Those are that a Drug Addiction Treatment Centre Report was called for by the trial judge. That report said that he was not considered suitable for the Centre because not only did he have a large number of previous convictions but he had been engaged in other criminal activities. His institutional behaviour had been poor and he was likely to exert a bad influence over the other inmates. In the light of that, the judge had no option but to impose a custodial sentence, one of 3 years, which reflects the amount of drugs that were found on him.

5. The applicant has been in custody for some 8 months. He has, with normal remission, some 16 months yet to serve. It should not be thought that because he is in prison custody, not a Drug Addiction Treatment Centre, help is not available to him to overcome his addiction. Assistance will also be available to him on release from the Society for the Rehabilitation of Offenders if he wishes to avail himself of that help. It is only to be hoped that he can rid himself of the addiction. It, as Mr Hemmings says, he does intend to help his family who are in China, he will have every opportunity to do so. We do not see that there is anything wrong with the sentence which was passed on him by the trial judge, indeed he seems to have had little option. The application for leave to appeal against sentence must be dismissed.

J. Hemmings (William Au & Co.) for Applicant

G.J. Lugar-Mawson S.A.C.P., for Respondent