The Queen v. Leung Tai

HCMA000324/1989

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 324 of 1989

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Between

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 9 May 1989

Date of Delivery of Judgment: 9 May 1989

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J U D G M E N T

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1. The Appellant was charged with two offences: One of possession of dangerous drugs for the purpose of unlawful trafficking and the other of possession of apparatus fit and intended for the injection of dangerous drugs.

2. He pleaded not guilty to the charge of possession for the purpose of unlawful trafficking, but only insofar as the element of unlawful trafficking was concerned, being prepared to admit possession. He pleaded guilty to the charge of possession of apparatus.

3. After hearing evidence relevant to the element of unlawful trafficking the learned magistrate found that the presumption which arose from the quantity involved had not been rebutted and convicted the Appellant as charged.

4. The learned magistrate sentenced him to imprisonment for 2 years and 3 months on the first charge and to imprisonment for 6 months on the second charge, but ordered that both sentences be served concurrently.

5. The Appellant originally appealed against, conviction and sentence, but today abandoned his appeal against conviction.

6. Miss Panesar who appears for him in connection with his appeal against sentence limits the appeal to the unlawful trafficking charge. In support of his appeal, she advances a number of grounds, but the two which concern me are those which relate to the Appellant's age and his record which shows "a long, term and deep rooted drug addiction".

7. The learned magistrate when sentencing the Appellant took his age to be 69 which is the age recorded on the charge sheet and in the summary of facts which was presented in the lower court.

8. The Appellant in his own evidence said that he was 73 years of age and his personal details in his criminal record show that he was born in 1916. His criminal record also shows that his drug addiction began in 1957, 32 years ago. It is a record which contains details of 34 previous convictions, 22 of which are related to dangerous drugs, but only one of which as his counsel pointed out, was a conviction for possession for the purpose of unlawful trafficking in 1985.

9. It would appear that there is no hope of ridding the Appellant of his addiction on the other hand, since he has been guilty of the offence of possession for the purpose of unlawful trafficking, a custodial sentence is the appropriate sentence to impose.

10. The learned magistrate in deciding upon a period of 2 years and 3 months was guided by the Court of Appeal guidelines in Chan Chi-ming v. the Queen [1979] HKLR 491.

11. There can be no suggestion that the sentence was wrong in principle or excessive having regard to those guidelines.

12. What I think however was missing in the assessment of the appropriate sentence for this Appellant was his condition in relation to dangerous drugs and his age. Those circumstances call for a show of mercy and it is on that ground alone that I can see any reason to interfere with the sentence.

13. In this man's case, I think that a period of 18 months imprisonment is all that is warranted. I accordingly, therefore, allow the appeal, quash the sentence on the charge relation to unlawful trafficking and substitute therefor a sentence of imprisonment for 18 months. The sentence in relation to the other charge will stand and both sentences will be served concurrently.

Representation:

Mr. M.J.B. Arthur, CC for the Crown.

Mrs. M. Panesar (D.L.A.) for Appellant on appeal against sentence.

Appellant in person on appeal against conviction.