Lo Po v The Queen

Court:Court of Appeal (Hong Kong)
Judgement Number:CACC577/1971
Judgment Date:29 Oct 1971
CACC000577/1971 LO PO v. THE QUEEN

CACC000577/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 577 OF 1971

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BETWEEN
LO PO Appellant
and
THE QUEEN Respondent

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Coram: Pickering, J.

Date of Judgment: 29th October, 1971.

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JUDGMENT

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1. The appellant was convicted of possession of dangerous drugs for the purpose of trafficking and was sentenced to two years imprisonment, He appeals against conviction.

2. The charge concerned a mixture containing salts of esters of morphine, and since that mixture did not also contain in the prescribed minimum quantity, the drugs specified in sub-sections (c)(vi) and (e) of s.46 of the Dangerous Drugs Ordinance, it follows that the statutory presumption of possession for the purpose of trafficking, contained in the section, did not in fact arise. The possession was, of course, at a date before the amendment of the Dangerous Drugs Ordinance filling that particular lacuna in the presumption of possession for the purpose of trafficking.

3. This ground of appeal alone would have been sufficient to justify the substitution of a conviction for simple possession of dangerous drugs for the conviction recorded, but another matter must also be mentioned.

4. The appellant was charged with simple possession of dangerous drugs and not with possession for the purpose of trafficking yet the learned magistrate found that the presumption obtaining under s. 46 of the Dangerous Drugs Ordinance applied, and found the appellant guilty of possession for the purpose of unlawful trafficking. Such purpose never formed part of the particulars of the alleged offence and even if the drugs had been of such a nature and quantity as to attract the presumption under s.46, it was not open to the learned magistrate to convict him of possession for the purpose of unlawful trafficking in the absence of a charge of that nature.

5. The third schedule of the Dangerous Drugs Ordinance contains particulars of offences, other than that charged, of which a defendant may be convicted, and whilst it is open to a court to convict for possession of a dangerous drugs where the offence charged is possession for the purpose of unlawful trafficking therein, the converse is not provided for in the schedule.

6. Mr. Eddis, for the appellant did not seek...

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