Chu Yiu-wai v. The Queen

CACC000282/1978

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 16th May, 1978.

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JUDGMENT

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Pickering, J.A.:

1. This is an appeal against concurrent sentences of four years' and five years' imprisonment in respect of two charges of possession of dangerous drugs for the purpose of unlawful trafficking.

2. The appellant, a man of 55, was ambushed by police officers who approached him as he waited for the lift outside his flat. Upon his person there were found seven packets containing 3.1 grammes of a mixture containing 0.8 of a gramme of salts of esters of morphine. That is the subject of the first charge. The second charge relates to 56.5 grammes of a mixture containing 11.8 grammes of salts of esters of morphine found in his flat. The appellant, caught red-handed, frankly told the police that he was going out to sell the drugs found upon his person. He has a record going back some twenty-two years which includes twenty-three convictions for simple possession of and four for smoking dangerous drugs as well as one for possession for the purpose of trafficking for which he was sentenced to nine months' imprisonment. He is, of course, an addict.

3. Mr. Sanguinetti, for the appellant, urged upon us that there was no evidence that the appellant was an habitual trafficker, the relatively small quantity of the drugs involved and suggested that a total of five years' imprisonment in these circumstances was outside the normal tariff. Mr. Gall, for the Crown, whilst conceding that the sentences "might to a degree, be over the tariff", argued that they were not manifestly excessive.

4. We think that there is merit in the appeal and that in all the circumstances, especially having regard to the quantity of drugs involved, the sentences were too high. We have previously said that where large quantities of drugs are involved, a mathematical comparison of sentences imposed in other cases based upon the quantity of drugs involved in each case is not very realistic. Where however the quantity is relatively small some such comparison may not be without value. Mr. Sanguinetti was able to refer us to the case of Leung Kwok-fai and The Queen⁽¹⁾ where possession for trafficking in a mixture of 107 grammes resulted in a sentence of five years' imprisonment being set aside and substituted by one of three and a half years.

5. So far as we are aware the normal sentence for possession for trafficking in very small amounts of drugs is in the region of two or two and a half years and the former is, we think, the appropriate sentence in respect of the first charge whilst the latter is deserving of three and a half years those sentences to be concurrent.

6. Accordingly we set aside the concurrent sentences of four and five years' imprisonment and substitute for them the sentences indicated above.

Representation:

A.J.J. Sanguinetti (Director of Legal Aid) for appellant.

T.M. Gall for Crown/respondent.

(1) Cr. App. No. 529/76