Attorney General v. Lam Ming-kwong

CAAR000004/1979

Review of sentence - possession of dangerous drugs for the purpose of unlawful trafficking - nine months' imprisonment - large quantity of morphine - Defendant not aware of the precise amount - irrelevant that Attorney General directed trial in District Court and not High Court - sentence increased to 2½ years' imprisonment.

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Coram: Roberts, C.J., Huggins, J.A. and Cons, J.

Date of Judgment: 29 May 1979

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JUDGMENT

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Huggins, J.A.:

1. This is an application by the Attorney General for review of a sentence imposed for an offence of possession of dangerous drugs for the purpose of unlawful trafficking. The facts are very short. The Respondent was seen taking a shopping bag from another man and carrying it a very short distance. He was stopped and the bag was found to contain, underneath some vegetables, dangerous drugs consisting of 906.2 grammes of a mixture containing 250.2 grammes of salts of esters of morphine. In a statement to the police he said that he was carrying the bag on behalf of someone else and that he was being paid $200 for that service. He pleaded Not guilty but he was convicted after a trial and sentenced to nine months' imprisonment. It is contended on behalf of the Attorney General that this sentence is manifestly inadequate and wrong in principle.

2. The learned judge gave reasons for what he accepted was a lenient sentence, and he mentioned three factors. The first was that the Respondent was in a very small way of business, carrying the drugs for a short journey of only a few dozen paces for a reward of a mere $200. Secondly, he thought there was a suspicion that this man had been employed solely to take the risk of arrest. And, thirdly, he said that the man was of previous good character although of an age of thirty-seven.

3. Mr. Evans has submitted with force that those reasons alone were not sufficient to justify what the judge himself accepted to be a very light sentence. Mr. Sedgwick has, however, pointed out that the judge, although he did not mention this factor, had found as a fact that the Respondent was not aware of the exact quantity of the drugs, and by that we take him to mean that the Respondent had no idea of the quantity save that it was such quantity as could be carried in a shopping bag. In other words he did not know that there was in this shopping bag a very large quantity - approximately 2 lbs. of salts of esters of morphine.

4. We have been referred to a number of cases which suggest that the judge was right in thinking that the sentence was a lenient sentence. The question we have to decide is whether it was so lenient that we ought to interfere. We have come to the conclusion that even giving full effect to the factor which Mr. Sedgwick has advanced before us this man clearly knew that he was carrying dangerous drugs for the purpose of trafficking. We are not impressed by the fact that he was tried in the District Court rather than in the High Court: that ought to be an irrelevant consideration in fixing sentence, save only that a court must never impose a sentence beyond its jurisdiction. Apart from that normally an offender should receive a sentence which would be the same wherever the case was tried. We think that a sentence of three or even more years would have been appropriate for this offence in the normal way but having regard to the consideration advanced by Mr. Sedgwick and to the fact that this is a review of sentence and not an appeal against sentence we allow the application and substitute a sentence of two and a half years' imprisonment.

29th May 1979.