The Queen v. Hima Dorje

HCMA000886/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 386 OF 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 7 September 1989

Date of Delivery of Judgment: 7 September 1989

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J U D G M E N T

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1. The Appellant pleaded guilty to two charges of trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance.

2. He arrived here on a flight from Nepal on the 5th of June 1989. When he was passing through customs, a Customs Officer decided to search him, and as a result of the search, a packet of cannabis resin was found in one of the two pairs of underpants he was then wearing. Later, further cannabis resin in the form of pellets were discharged from his body whilst he was under medical supervision in Queen Elizabeth Hospital.

3. The learned Magistrate sentenced him to imprisonment for 18 months on each charge and ordered that the sentences be served concurrently. The learned Magistrate in her reasons for sentence mentions that she had referred to the well-known case of Chan Chi-wing, and used the tariffs for section 7 offences as suggested in that case as a basis for determining the appropriate sentence for these offences which are of course section 4 offences and she arrived in that way at the sentences which she imposed.

4. Mr. Li who appears for the Appellant today in support of his appeal against the sentences on the basis that they are manifestly excessive, has referred me to a number of cases and has produced an interesting analysis of six recent cases. It is quite startling to find from his analysis that although the courts say that there is no constant multiplier representing the relationship between a section 7 and section 4 offences, nevertheless, Mr. Li can show that generally there is a pattern of variable multipliers of between 1.5 and 1.7 with an average of 1.66 disclosed by actual sentences approved on appeal. What is interesting about that average figure is this: in The Queen v. John William Weerth (Cr. App. No. 491 of 1988) the Court of Appeal, whilst saying that the use of a multiplier of 3 to 4 which had been used by the Judge in the lower Court in that case was far too high, and that, in any event, the use of multipliers was not appropriate, then held that a sentence of 20 months was the proper sentence for a section 4 offence where the sentence for a section 7 offence involving the same quantity of drugs would have been 12 months according to the Chan Chi-ming guidelines. Now, 20 over 12 is as Mr. Li points out, 1.66!

5. The Court, however, then went on to say this:-

"We emphasise that we have not applied a multiplier of 1.66 nor indeed any multiplier. We have, bearing in mind the tariff, arrived at what we considered to be the appropriate sentence in the circumstances of this case."

6. Mr. Li's interesting point is that although the use of a multiplier of 1.66 is inappropriate its use will more likely than not produce an appropriate result.

7. In this case, the guideline for a section offence suggests a term of imprisonment of 4 to 8 months with a leaning towards the lover end of that scale in view of the quantity involved. The sentence of 18 months is therefore approaching four times the length of the appropriate section 7 offence. On the basis of what the Court of Appeal said in Weerth's case about the use of a multiplier of 3 to 4 a sentence of 18 months would therefore appear to be manifestly excessive. In Weerth's case, where the quantity of cannabis was 1961 grammes, the Court came to the conclusion that a sentence of imprisonment for 20 months was appropriate for a section 4 offence. Here, the total quantity was just in excess of 500 grammes. Again, by that quantity comparison it would seem that the sentence of 18 months in this case was manifestly excessive.

8. I am, therefore, persuaded that the sentences must be quashed so the next question is: what is the appropriate sentence to substitute? The Appellant was importing the drugs into Hong Kong. He was importing them in a way which made it very difficult to detect his criminal conduct. Bearing that in mind and giving him some credit for his plea of guilty - I agree with the learned Magistrate that very little credit could be given in this case by way of discount because he was caught red-handed - I think the appropriate sentence in his case is one of 12 months' imprisonment. I, therefore, allow the appeal, quash the sentences, and order that in lieu he be sentenced to imprisonment for 12 months on each charge. I further order that the sentences be served concurrently.

Representation:

Mr. Li Hon Lam instructed by DLA for Appellant.

Mr. P. Callaghan, C.C. for Crown/Respondent.