Li Kang-ming v. The Queen

CACC000270/1982

BETWEEN

__________

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

Date: 30 November 1982

__________

JUDGMENT

__________

McMullin, V.-P. :

1. The Applicant pleaded guilty in the District Court to a charge of possession of dangerous drugs for the purpose of unlawful trafficking. The amount of the drugs was 12.33 grammes of a mixture containing heroin. The facts were within a very narrow compass. On 6th December 1981 he was stopped by two patrolling police officers in Hamilton Street, near Reclamation Street. What had attracted their attention we do not know but he was searched end upon search they found a small yellow bag which contained 32 spills of white powder. Subsequently, upon examination, the white powder turned out to be the dangerous drug laid in the charge. When he was arrested and cautioned, he took the officers to No. 2, Hamilton Street and he then said to one of the officers: Fix it up, 4466". The policeman asked what he meant and the Defendant replied: "Let us drink a cup of tea and forget it". He was then, perhaps disingenuously, asked what he meant by "Take a cup of tea" and he said: "Two Ho Chi." This turns out to that as a form of shorthand for !;two thousand dollars". He then nut his hand in his pocket but was stopped by the police officer who said he would be charged with an offence of offering a bribe

2. This is in fact an application for leave to appeal out of time. The application was already out of time on 17th September when the matter was taken before the Single Judge and the application was refused - the Applicant having been convicted and sentenced on 13th March.

3. This was a small amount of dangerous drugs and it falls within the very small quantum referred to in Chan Chi Ming where the Court of Appeal laid down guidelines in relation to the sentence tariff applicable to dangerous drugs offences. It was there suggested that small amounts of up to 30 grammes fell within the description of "very small" and that the tariff for such offences should be 2-21/2 years. The quantity involved here is less than half that amount and we are satisfied that the  sentence of 3 years was excessive. It was in fact a case which, on its purely drugs aspect, was fit for trial before a magistrate. No doubt the authorities thought that the matter which rendered it more serious was the second offence of offerring a bribe. The sentences of imprisonment were ordered to run consecutively, making a total of five years.

4. We are satisfied, even taking into account the bribe which constitutes a serious offence, that the totality adopted by the District Judge was quite excessive. We also think that the imposition of a fine, in addition to the sentence of imprisonment imposed, was wrong in principle, having regard to the 'particular circumstances of this case. We allow the application and treat it as the hearing of the appeal and we  will set aside the sentence of three years upon the first  count and substitute for `that a term of two years; on the second count we set aside the sentence of two years and reduce that to one year which will run consecutively to the sentence of two years on the first count The $2,000 fine will be set aside.

Representation:

Appellant in person.

B. Ryan, for Respondent/Crown.