R. v. TSANG BIU SUM

CACC000195/1995

IN THE COURT OF APPEAL

1995, No. 195
(Criminal)

BETWEEN
	THE QUEEN
	AND
	TSANG BIU SUM

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Coram : Hon. Power, V.-P., Bokhary and Ching, JJ.A.

Date of Hearing : 30 August 1995

Date of Judgment : 30 August 1995

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court):

1. The applicant was charged that on 11th of January last year he unlawfully trafficked in a dangerous drug, namely, 27.84 grammes of a mixture containing 8.62 grammes of salts of esters of morphine. He was convicted and now seeks leave to appeal against that conviction.

2. The police had been watching a room in the Shek Lei Estate in Lei Muk Shue, the home of the applicant's cousin with whom he had been living. He was stopped and searched when he emerged from those premises with three others. On him were found three keys, one to the premises and one to a padlock affixed to a black bag. The applicant admitted that the bag and its contents were his. The drugs formed part of those contents. There were three small bricks each in a plastic bag within a cigarette packet and there was another white brick and three drinking straws in another cigarette packet. In a wardrobe in the premises was a plastic box containing a pair of scissors, a pair of nail clippers, a clip and a portion of a drinking straw. On a shelf in the wardrobe there was found a plastic spoon and a set of postal scales. All of these exhibits had salts of esters of morphine upon them. On the same shelf in the wardrobe, there was also found inter alia a packet of twenty-four plastic drinking straws, another twenty-five plastic drinking straws and thirty small plastic bags. There were no traces of salts of esters of morphine upon these objects. The applicant admitted that all of these items were his.

3. His complaint is that the drugs were for his own use and not for the purposes of trafficking. He gave evidence that he earned about $10,000 a month and produced a budget which showed that he was able to purchase the drugs in question at a cost of $2,200. He explained the other matters by saying that he was an addict and would inject heroin five or six times a day. He told the police that he lived in the Shek Lei Estate and was working in Tuen Mun. He said he had no time to buy drugs so he took them with him and used them as necessary. He gave evidence that he wished to ensure that he had measured amounts so as to prevent his addiction from growing.

4. Clearly the applicant was in possession and the only question is whether or not he was in possession for the purposes of trafficking. The items to which reference has been made show that he was at least measuring the drugs into quantities. The only explanation for that activity was that it was for his own convenience. The judge below saw and heard him giving evidence. He rejected the applicant's evidence. He remarked that in evidence the applicant said that he both lived and worked in Tsuen Wan as contrasted with his statement to the police. He remarked also that the police had found no syringe in the premises notwithstanding the applicant's claim that he injected for heroin and he rejected the applicant's evidence that that syringe was hidden in a cistern. The applicant complains that the judge was purporting to decide the matter as an expert insofar as dosages of drugs are concerned. The remarks in the Reasons for Verdict, however, are simply a matter of common sense. It remains that once the applicant's explanation for possession was rejected, there could be no explanation for his possession of the drugs and the other implements. This application must, therefore, be dismissed.

(N. P. Power)	(K. Bokhary)	(Charles Ching)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Mr A.A. Bruce, S.A.C.P. for Crown/Respondent

Tsang Biu Sum, the applicant, in person