Li Kwong-keung v. The Queen

CACC000206/1982

Headnote: Sentence, Cannabis and Chan Chi Ming [1979] H.K.L.R. 491

BETWEEN

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Coram: McMullin, V.-P., Li and Silke JJ.A.

Date: 30 June 1982

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JUDGMENT

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Silke J.A. :

1. The Applicant, aged twenty-seven, was convicted on the 12th February 1982 in the District Court for the offence of being in possession of dangerous drugs for the purpose of unlawful trafficking.

2. The drug in question was cannabis and the quantity was 852.30 grammes.

3. He applied for leave to appeal to the Single Judge and was refused on the 17th May. He renewed his application and appears before us by reason of that renewal.

4. He had been apprehended at Kai Tak Airport on the 24th July 1981. Having presented one suitcase for examination, nothing unusual being found in that case, he was selected as a person to whom a body search should be administered. This was done and 8 packets of cannabis were found taped to various places on his body.

5. He made a cautioned statement wherein he said that he had gone to Manila for a holiday after his marriage had broken down and there an uncle of his had given him some cannabis to bring back to Hong Kong.  He would be contacted by somebody in Hong Kong and the sale of that cannabis would be arranged. He was to be given $5,000 by his uncle.

6. The sentence passed upon him was one of four years' imprisonment and in passing sentence the trial Judge said :

"The amount of dangerous drugs involved in this case brought it within the 'substantial' category in the guidelines laid down by the Court of Appeal carrying a normal range of sentence from five to eight years."

He went on to say that -

"Cannabis is not in the same league as heroin where drugs are concerned but trafficking in any drug must clearly be treated as very serious."

7. The reference to the "substantial category in the guidelines laid down by the Court of Appeal" is clearly a reference to Chan Chi Ming⁽¹⁾ . That case referred to and referred only to morphine, heroin and barbiturates. While it is true that 852 grammes of a substance would be within that described as "substantial" and attract a range of sentence of from five to eight years, it is not correct simply to apply the tariffs laid down in Chan Chi Ming⁽¹⁾ to cannabis. It is not a question of cannabis not being in the same league as heroin. The Courts have consistently adopted a different sentencing policy towards cannabis related offences.

8. I should add that the offence charged is not "trafficking" but that of being in possession for the purpose of unlawful trafficking a less serious offence than that of trafficking itself.

9. The course that the trial Court should have taken was to refer, if it so wished, to Chan Chi Ming⁽¹⁾ , consider the categories set out therein and then reach its own criteria as to sentences to be imposed in respect of opium, which attracts a lesser sentence than the tariffs in Chan Chi Ming⁽¹⁾ , and then go on to consider the sentences to be imposed in relation to cannabis which, in turn, are lower than those imposed for opium.

10. We have been referred both by the Applicant himself, who appears in person, and by Miss Cheung, who appears for the Crown, to certain decisions of other Divisions of this Court relating to sentences in respect of opium and cannabis.

11. In Samtani ⁽²⁾ a sentence of two and one half years, imposed on a charge of possession for the purpose of trafficking of 405 grammes of cannabis, was not disturbed. We note that the substance was "essence of cannabis" and not cannabis simpliciter.

12. In Jamal and Singh ⁽³⁾ four years' imprisonment had been imposed on both appellants upon conviction on a charge of being in possession of dangerous drugs for the purpose of unlawful trafficking. The drugs were 1,400 grammes of raw opium. The Court, having considered other opium sentences, substituted for the four years a sentence of three and one half years' imprisonment on Jamal, mainly because of his co-operation with the authorities, but dismissed the appeal of Singh. The Court made reference to the indication given in Chan Chi Ming⁽¹⁾ that where soft drugs were involved a substantially lower sentence than the tariff sentence for hard drugs should be imposed. It felt that if the 1,400 grammes had been a hard drug then a sentence in excess of eight years would have been proper in the light of the tariff.

13. In Ackermann ⁽⁴⁾, while the Court of Appeal had other matters for consideration, it is noted that the Court of trial had imposed a sentence of three years and three months' imprisonment in respect of the possession for unlawful trafficking of 3,062.50 grammes of cannabis contained in twelve blocks.

14. We think here that the sentence of four years imposed upon this Applicant was both wrong in principle and manifestly excessive.

15. In the light of the quantity involved, his plea of guilty, his relatively clear record, certainly with no previous conviction relating to drugs, we consider a sentence of two years' imprisonment to be correct.

16. We will therefore allow the application for leave to appeal, treat the hearing as the hearing of the appeal, set aside the sentence of four years' imprisonment and substitute therefor a sentence of two years' imprisonment.

(1)   [1979] H.K.L.R. 491

(2)    C.A. 403/79

(3)    C.A. 978/80

(4)    C.A. 693/81

Representation:

Applicant in person.

Miss Ida Cheung for Grown/Respondent.