Attorney General v. Chan Mui-kam
Read the full judgment text of CAAR 24/1975 on BabelCite. This Court of Appeal judgment was delivered on 22 January 1976 before Briggs CJ, McMullin J, Pickering J.
Criminal law – dangerous drugs – manufacture and possession – sentencing – review of sentence on ground of manifest inadequacy – whether wife of drug manufacturer can be treated as reluctant or coerced collaborator – policy of imposing heavy sentences on all persons actively involved in manufacture of or trafficking in dangerous drugs – legislative increase in fining levels for drug offences – discretion to impose substantial fines in addition to imprisonment – facts_summary: police raid on Walled City premises discovered 25 lbs of heroin and 26 lbs of morphine concealed in wall cavities with manufacturing paraphernalia – respondent found with keys to premises, drug traces on clothing and under fingernails – whether the sentence of one year imprisonment was manifestly inadequate – yes, the respondent was a fully active and acquiescent partner in drug manufacture, not a helpless or coerced participant – distinguishable from NG Sik-ho & Others where the wife gave only minor and incidental assistance at the cost of abandoning her family and home – respondent held considerable independent assets in money and real estate in her own name, demonstrating she was not wholly subject to her husband's control – the 1974 legislative increase in fining levels signified Legislature's intention that courts impose telling fines on drug manufacturers with means – sentences raised to eight years concurrent on each count with a fine of $200,000, or in default a further 12 months' imprisonment, with three months to pay the fine.
Legal issues: Adequacy of sentence for active participant in manufacture of dangerous drugs · Discretion to impose substantial fine in addition to custodial sentence for drug manufacture
Outcome: Application for review allowed; sentences raised from one year to eight years concurrent on each count; fine of $200,000 imposed in addition.
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CAAR000024/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) APPLICATION FOR REVIEW NO. 24 OF 1975 -----------------
----------------- Coram: Full Court (Briggs, C.J., McMullin & Pickering, JJ.) Date of Judgment: 22 January 1976 ----------------- DECISION ----------------- 1. The respondent and her husband were convicted by a jury upon counts charging them with the manufacture and possession of dangerous drugs. A police raid had discovered them together on the 20th of April, 1975 in premises in the Walled City. A search revealed some 25 1bs. of heroin and 26 1bs. of morphine concealed in cavities in the wall of those premises. The familiar paraphernalia of manufacture were also found and seized by the police. It is quite clear upon the evidence that the premises were used for the purpose of manufacturing dangerous drugs. The husband, who had one previous conviction for possession of heroin, was sentenced to 15 years' imprisonment for the present offences the sentences to run concurrently. Passing sentence upon the present respondent the learned Commissioner said :
The Attorney General now applies for review of these sentences on the ground that they are manifestly inadequate. Notwithstanding Mr. Sedgwick's contention to the contrary we are satisfied that the evidence did disclose that the respondent had taken an active part in support of her husband in the manufacture of dangerous drugs. We think that no valid analogy can be drawn between the case of this respondent and that of the woman, SIN Koo, one of the defendants in the case of NG Sik-ho & Others which was tried last year, whose sentence of ten years was reduced to five upon appeal. In making that drastic reduction the court made it plain that the evidence had shown only that SIN Koo, who was the wife of the owner of one of the junks involved in the drug running, had given, on a few occasions, minor and incidental assistance to her husband and his confederates by the use of the junk which was the sole home of herself and of her family. The court took the view that she could only have refused at the cost of abandoning her family and her home. In the present case the facts are very different. The respondent was found in possession of the keys to the very premises where the manufacturing was carried on. Those premises were far from her own home and were clearly not of a domestic nature. Traces of the drugs were found on her clothing and under her finger nails. These are matters which, taken together with the immediate circumstances of her discovery and arrest, make it plain that she was a fully active and acquiescent partner with her husband in the business of drug manufacture. Mr. Sedgwick emphasized the fact that, at the trial, counsel for the Crown, in reference to the evidence of the considerable assets, both in money and real estate, shown to have been in the possession of the respondent, conceded that this was not alleged to have been part of the proceeds of previous trafficking in drugs but was relied upon to show that the respondent was neither so poor nor so incompetent in her own affairs nor yet so ignorant of the affairs of her husband as she had maintained. That point is well taken but the fact remains that this was a woman of considerable substance both in house property and money standing in her own name and clearly subject to her separate use. Those are circumstances which tell strongly against the suggestion that she was so subjected to her husband's control as to have been a reluctant collaborator whose freedom was wholly circumscribed by family exigency. 2. In the case of NG Sik-ho (Criminal Appeal No. 410 of 1975) the Appellate Court found that the wife was a helpless and acquiescent pawn of her husband and his associates. The respondent's case is at the opposite pole of criminal participation and in view of the consistent policy now followed for many years in this court of imposing heavy sentences on all persons actively involved in the manufacture of or trafficking in dangerous drugs, we are satisfied that the present sentences were wholly inadequate. We accept also Mr. Penlington's contention that the drastic raising of the level of fines imposable in respect of such offences by the Legislature late in 1974, is a clear intimation of the desire of the Legislature to provide that not only will drug manufacturers suffer serious consequences in their own persons but that the courts will, additionally, have the discretion to impose really telling fines. Notwithstanding the Crown's concession in relation to the assets of the respondent, it is apparent that whatever their source, she has ample means to pay such a fine. 3. For these reasons, upon the conclusion of the hearing, we announced that the sentences of one year upon each count would be raised to eight years concurrent upon each count and we ordered that the respondent should pay a fine of $200,000 or in default of payment thereof should undergo a further period of twelve months' imprisonment, three months being given in which to pay this fine. Representation: Penlington for Crown/Applicant. Sedgwick (Hoosen & Co.) for Respondent. |