The Queen v. Wild Rudolf Christian

HCMA001082/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1082 OF 1989

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BETWEEN

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Coram: Deputy Judge Saied in Court

Date of hearing: 4 October 1989

Date of delivery of judgment: 13 October 1989

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J U D G M E N T

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1. The appellant, who is Swiss national aged 27, was charged in the first two counts - Charges A and B - with possession of dangerous drugs for the purpose of unlawful trafficking contrary to section 7(1) of the Dangerous Drugs Ordinance, and in Charge C with possession of the dangerous drugs contrary to section 8(1)(a) of the ordinance.

2. He pleaded guilty to the Charge C. With regard to the other two Charges he admitted "simple" possession and that plea was accepted by the Crown.

3. Basing himself on the report of the medical officer of the DATC, which pointed out the appellant's physical disability in that his right upper limb is amputated at the upper arm level and his lack of proficiency in speaking or understanding English, the Commissioner of Correctional Services considered the appellant to be unsuitable for admission to a drug addiction treatment centre. The medical report confirmed that he is a drug addict.

4. The appellant was sentenced to concurrent terms of 6 months imprisonment on Charges A and B; and fined $1,500.00 on the last Charge.

5. He now appeals against his sentences on Charges A and B, on the ground that sentence of 6 months is execessive. The Crown submits that it is proper and in line with precedent.

6. Charge A concerned a mixture of 8.27 grammes, containing 0.39 gramme of salts of esters of morphine.

7. Charge B concerned two plastic containers of a mixture totalling 8.04 grammes, containing 7.38 grammes of salts of esters of morphine.

8. At the sentence stage of the proceedings the appellant was represented by the duty lawyer who mentioned in mitigation the appellant's clear record and his pleas of guilty. He referred to the reason why he was not considered suitable for admission to the DATC. He pleaded for leniency and urged the Court to pass a non-custodial sentence.

9. The learned trial magistrate proceeded to sentence and said,

"There is clear authority that the fact that a person is a foreigner is not a sufficient mitigating factor of its own to avoid an immediate custodial sentence of one is appropriate. It is unfortunate that Drug Addiction Treatment Centre is not appropriate as that would at least have assisted you in ridding yourself of your habit.  In my view the quantities of the dangerous drugs do merit an immediate custodial sentence. I note that the dangerous drug in Charge A is No. 3 heroin whilst that in Charge B is No. 4 heroin. The Crown has not sought to 'convert' the No. 4 to No. 3 for sentencing purpose and I am thus unaware of the comparative quantities (by direct evidence)."

10. In his Statement of Findings the learned magistrate says that, having determined the length of the sentence, he considered whether additional reasons existed for suspending the sentence and concluded they did not.

11. It is to be noted that in his Statement of Findings the learned magistrate has gone on to cite a number of authorities including R. v. CHENG Yuen, Crim. App. No. 460/88, C.A., R. v. CHAN Ka-wai, Crim. App. No. 530/88 and R. v. Szeto Chuk, Mag. App. No. 253/89, in an exercise to appraise himself of the quantity on the basis of conversion of the mixture in Charge B to No. 3 which is the type normally consumed in Hong Kong. This worked out at 113.5 grammes. It must be pointed out that the mixture in at least the first two authorities cited above comprised of esters of morphine. In Szeto Chuk, Bewley, J. used the conversion system to demonstrate the absurdity of the appellant's suggestion in his attempt to rebut the presumption of unlawful trafficking that purchase of 5 grammes of No. 4 heroin, which was equivalent to 70 grammes of No. 3, was well within his financial means,

12. I do not think it necessary to deal with the matter of "conversion" in the present case where the appellant's plea to simple possession was accepted by the Crown, thus effectively removing the element of the "ultimate commercial mixture". Suffice it to say that such exercise, where it becomes necessary, ought to be conducted on the basis of evidence adduced in the presence of the defendant or by agreement of counsel that the seized mixture is capable of being converted into No. 3 heroin – see Suvit Utthayanwatana v. R., (1982) HKLR 323. The significance of the offence of simple possession is that the drugs, whatever the amount, are for self-consumption - LAI Sik-keung v. R, Crim. App. 173/89.

13. Having said this, I am satisfied that, the sentence having been imposed when the learned magistrate was "unaware of the comparative quantities", no prejudice was done to the appellant by the mathematical conversion which occurred at a subsequent stage when he was formulating his Statement of Findings. As I see the situation, the appellant was sentenced on his plea of guilty to simple possession of the dangerous drugs as stated in Charges A and B.

14. The learned magistrate took into account the plea of guilty and the appellant's clear record. In the light of LI wai-keung, Mag. Cr. App. 537/85 and LIU Chi kwong , Mag. Cr. App, 182/88, both relied upon by the learned magistrate, where the quantity of drugs was significantly smaller than here and sentences of six months were considered appropriate, I am of the opinion that concurrent sentences of 6 months were in no way harsh or excessive. The only remaining matter was whether that sentence should have been suspended. The trial magistrate considered this and concluded, rightly in my opinion, that there were no additional reasons to justify suspension.

15. The appeal is dismissed.

Representation:

Miss Ravenscroft, Crown Counsel, for the Respondent

Appellant, Mr Rudolf Christian WILD, acts in person