HKSAR v Gurung Laxman
Court of Appeal
Criminal Appeal No. 385 of 2015
Yeung ACJHC, McWalters and Pang JJA
16 May 2017

Dangerous drugs – trafficking – conviction on charge of trafficking – appellate court satisfied that precise quantity of drugs in defendant’s possession were for trafficking while rest should be treated as having been for self-consumption – particulars of trafficking charge amended as appropriate and appropriate unlawful possession charge added – sentence reduced

D stood trial in the District Court on a charge of trafficking in dangerous drugs containing 7.09 g of methamphetamine hydrochloride (“Ice”). Those drugs were in three bags wrapped together in tissue paper and bound with tape. Most of the drugs, 6.49 g of “Ice” were in a large bag while the rest of the drugs, namely a total of 0.60 g of “Ice” were in two small bags. D, who had a history of drug abuse, admitted being in possession of all the drugs, but denied trafficking in any part of them, saying in evidence that all the drugs were for his own consumption. The Judge was of the view that the only reasonable inference was that D had all the drugs in his possession for the purpose of trafficking; convicted him as charged; did not accept for the purpose of sentencing that any of the drugs were for D’s own consumption; and sentenced him to five years and six months’ imprisonment. With leave, D appealed against conviction and sentence.

Held, dismissing the appeal against conviction, but allowing the appeal against sentence by reducing the sentence from five years and six months’ imprisonment to four years’ imprisonment, that:

  • The Judge was entitled to infer that at least the drugs in the two small bags were possessed by D for the purpose of trafficking.
  • But the Judge had not revealed in sufficient detail which parts of D’s evidence he accepted and which primary facts he relied upon to infer trafficking for the Court of Appeal to be satisfied that the inference that D was trafficking in the drugs in the large bag was the only reasonable inference.
  • In a case like the present where the precise portion of the drugs for self-consumption was known, it was appropriate that the offender be convicted of separate offences of trafficking and unlawful possession.
  • The Court of Appeal had the power – of which power they could avail themselves where, as here, such power could be exercised without any possible risk of prejudice to the appellant – to amend the charge sheet by amending the particulars of the trafficking charge to reduce the quantity of drugs as appropriate and adding an unlawful possession charge as appropriate. And this would be done in the present case.
  • For trafficking in the 0.60 g of “Ice” in the two small bags, D was sentenced by the Court of Appeal to three years’ imprisonment. And for unlawful possession of the 6.49 g of “Ice” in the large bag, he was sentenced to 18 months’ imprisonment.
  • On the totality principle, only 12 months of the sentence of 18 months’ imprisonment for unlawful possession was to be served consecutively to the sentence of three years’ imprisonment for trafficking, so that D’s total sentence would be four years’ imprisonment.
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