The King v. Ah Fong

Opinion of a majority of the Court by

Austin, J.

The defendant excepted to the Court in Banco from a sentence and judgment entered upon the verdict of a jury by which he was convicted of the offense of having opium in his possession.

The facts shown were, that the defendant was found in a room on the second floor of a house on Maunakea street, Honolulu, on a bed in the act of smoking opium, or some preparation thereof, and that ■ on a tray on that bed were found a lamp, a red clay pipe, two wires for roasting opium, a piece of opium as large as a pea, and a lichee nutshell with opium (a small quantity). The defendant gave evidence that one Ah Sing or Ah Chong, who was found on the bed with him, was the party smoking, and not himself.

The defendant’s counsel asked the Court to charge the jury : “ That if the jury believe the evidence for prosecution that the defendant was- smoking opium, or some preparation thereof, at the premises of Ah Sing or Ah Chong, not being his own residence, there being no evidence as to any other *620opium than tbat actually being smoked they will acquit the prisoner, smoking opium not being an offense under the statute.”

The Court refused so to charge, and the defendant duly excepted ; and the Court charged the jury that “ smoking of opium was not explicitly an offense, but its possession is so, so I charge you that if you believe from the evidence that any appreciable quantity of opium was found in the possession of the.defendant for the purpose of smoking, you will convict the defendant,” to which charge the defendant excepted.

The verdict of the jury is conclusive that the defendant was the party smoking, and that he had the possession of an appreciable quantity for the purpose of smoking.

The statute under which the defendant was arraigned and •convicted was Chapter 56 of the Laws of 1874, as amended by Chapter 43 in 1876, and Chapter 18 in 1880, and as amended, entitled “An Act to restrict the importation and sale of opium, or preparations thereof.”

Section 1 of the Statute, as amended, provides that “ whoever shall import, sell, give, or furnish opium, or any preparation thereof, to any person in this Kingdom, except as provided in Section 2, shall be liable to punishment; and Section 3 provides that any person who .shall have in his possession opium, or any preparation thereof, not duly received under Section 2 shall forfeit the same, and be liable to punishment.”

The defendant, if properly convicted, was convicted under Section 3. If he had opium in his possession it must be admitted it was not excusable under Section 2, which relates to opium duly furnished by a physician. Was the conviction just ?

It is true the smoking of opium is not forbidden. The leading object of the law, however, is to prevent the importation and sale of that drug. And one'of the great fosterers of such importation and sale is the demand for it by opium smokers. If then any opium smoker should buy or-obtain *621opium for smoking, and have it in his possession, he would violate the statute. We do not think that the amount he obtained, or had in his possession, would make any difference in the completion of the offense, whether it were a pound or of the size of a pea.

Attorney General Preston for the Crown. W. R. Castle and E. M. Hatch for the defendant. Honolulu, February 2, 1883.

The defendant’s counsel sought to apply to the case the maxim de minimis non curat lex, but we think that maxim does not apply.

In a case of larceny, where only one small piece of blank paper was traced to the prisoner, and his counsel claimed that the article stolen must be of the value of some coin known to the law, which was not shown, Parke Baron, says : “It must be assigned of some value — you say of the value of some known coin ; but I do not know of any authority for that. I do not know that it could not be stated as of the value of a hundredth part of a farthing.”

And the very learned Judge gave it as his opinion that the article stolen need not be of the value of some known coin. See Regina vs. Morris, 9 C. of P. (38 E. C. L. P. R.), p. 349.

We think, as charged by the Chief Justice, that if any appreciable quantity of opium was found in the possession of the defendant he was properly convicted.

The offense charged was the very lightest known to the statute. The amount of opium found was scarcely sufficient to be an article of commerce, of to pay for confiscation under the statute. It was not held for the purpose of gain, but only for pleasure, and as the result of a habit common to large numbers of Chinese.

The penalties are severe, and for a first and so light an offense the punishment should be milder than that imposed.

But we have no power to modify the sentence. Exceptions overruled.