The Attorney General v. Lee Chung-leung

CAAR000021/1976

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 28th December, 1976.

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DECISION

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1. The respondent, LEE Chung-leung, pleaded guilty to one charge of being in possession of a poison included in Part I of the Poisons List, contrary to sections 23 and 34 of the pharmacy and Poisons Ordinance. He was fined $1,000 or six months' imprisonment in default and given one month in which to pay the fine.

2. The Attorney General makes this application on the ground that the sentence was wrong in principle and manifestly inadequate.

3. The facts of the case are that LEE Chung-leung was intercepted by Preventive Service Officers at Kai Tak Airport as he was about to leave Hong Kong for Tokyo on the 16th November, 1976. He was searched and about one pound of suspected Part I poison was found in four polythene bags. One was attached to each leg and two others werefastened to his abdomen by adhesive tapes. The suspected poison was analysed by the Government Chemist and found to be ephedrine hydrochloride.

4. Unfortunately, the magistrate who tried the case does not appear to have been told what is the legitimate use of this drug. Mr. Penlington, who appeared for the Attorney General, told the court that ephedrine is a drug which is commonly used, albeit in very small quantities, for the relief of asthma. It is also sold on the illegal drug market as a stimulant. Ephedrine is not made in Hong Kong and very little is used here legitimately. However, there is a substantial illegal market for this drug which is greater in Japan than in Hong Kong.

5. Mr. Penlington urged that because of the dangers of trafficking drugs of this nature an immediate custodial sentence was appropriate.

6. Mr. Penlington drew our attention to the case of MA Leung-wai ⁽¹⁾ This was a case concerned with about 120 grammes of the drug commonly known as "speed", a drug used illegally in a similar manner to ephedrine. The facts of that case were very similar to those in the present case and the magistrate in that case imposed a fine of $4,000 and a six months' immediate custodial sentence. This was upheld by a judge on appeal.

7. We think that if the facts and the background of this case had been placed before the magistrate he would have taken the same view. In a normal case of this nature, we think that an immediate custodial sentence is a proper sentence.

8. More than a month has passed since the proceedings in the Magistrates Court has terminated and the respondent has paid the fine of $1,000. We think that this application must be allowed and that the respondent should be sentenced to a term of nine months' imprisonment in addition to the fine imposed by the magistrate, but in the particular circumstances of this case we order that the term of imprisonment be suspended for eighteen months.

Representation:

Penlington for the Crown/Applicant.

Niamatullah (Sousae & Hoosen) for Respondent.

(1) Criminal Appeal No. 811 of 1976.