Attorney General v. Cheung Wai-leung and Another
Read the full judgment text of CAAR 7/1982 on BabelCite. This Court of Appeal judgment.
1. This is an application by the Attorney General for a review of sentences imposed upon the two Respondents on a charge of possession of dangerous drug for the purpose of unlawful trafficking. Although the Notice of Motion states that the sentence was one of 18 months' imprisonment suspended for 12 months, the sentenced were is fact sentences of fines together with sentences of 18 months' imprisonment suspended for 12 months on condition that the fine was paid, the fine to be paid in two instal
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CAAR000007/1982 Criminal law - sentence - it is wrong to suspend a sentence of imprisonment on condition that a fine is paid.
BETWEEN
---------- Coram: Sir Alan Huggins, V.-P., Silke & Berker, JJ.A. Date of hearing: 29 September 1982 ____________ JUDGMENT ____________ Sir Alan Huggins, V.-P. : 1. This is an application by the Attorney General for a review of sentences imposed upon the two Respondents on a charge of possession of dangerous drug for the purpose of unlawful trafficking. Although the Notice of Motion states that the sentence was one of 18 months' imprisonment suspended for 12 months, the sentenced were is fact sentences of fines together with sentences of 18 months' imprisonment suspended for 12 months on condition that the fine was paid, the fine to be paid in two instalments. 2. The offence consisted of possession of some 700 grams of herbal cannabis which was in the possession of the two Defendants and which they tried to sell to an undercover agent. The 1st Respondent was the one who had contact with the agent and he arranged to meet him at a restaurant. He asked the 2nd Respondent to bring the drugs to the restaurant and it was there that the Respondents were arrested. 3. The main attack of the Crown on the sentences is upon the suspension of the sentences of imprisonment and it is suggested that the suspension makes the sentences manifestly too lenient and wrong in principle. We have been referred to a number of cases all of which apparently involved importation of cannabis and some of them involving importation of cannabis resin, which is some five times more potent than herbal cannabis. In our view the proper sentence at the time that these Respondents were convicted was one of 18 months' imprisonment to take effect immediately We think that in all the circumstances it was not right to impose a fine in addition. In particular there was no inquiry as to whether or not these Respondents were able to pay and it is most unlikely that the let Respondent was able to pay out of his own money: the bail money to which the Judge referred had been put up by his parents. We therefore quash the fine. 4. We think it was wrong to suspend the sentence on condition of payment of the fine, although there is power in Hong Kong to make a suspension conditional upon such terms as the Court may think fit. That does not necessarily mean that the power is unlimited. The Ordinance makes express provision for the term of imprisonment which may be imposed in default of payment of a fine, and the effect of the condition which was imposed in this case would be to put the Respondents in peril of a greater penalty than that prescribed for default. The Court in Deary v Reg., Crim. App. 1982 No. 289 said that six to nine months' imprisonment would be the normal sentence for simple possession of one kilogram of cannabis. Our case is not one of simple possession but of possession for the purpose of unlawful trafficking. Therefore the tariff would necessarily be slightly higher. 5. This is a case where both Respondents had clear records. The 1st Respondent was a boy of only 18 at the time that he committed the offence, but as against that it must be remembered that he was the organiser of this transaction. It was suggested to us that the let Respondent may have had second thoughts about committing the offence, because there was evidence that he shut his brief case while the transaction was in progress and sent the 2nd Respondent away. This is pure speculation. These was no evidence given of any such change of heart. Whereas we think that 18 months' imprisonment would have been the proper sentence, we must bear in mind that this is a review and also we bear in mind a factor which obviously impressed the learned Judge, namely that there was a considerable delay in bringing this matter to trial. The delay was caused in large part by the fact that the Crown originally intended to proceed in the Magistrates' Court and at the last minute decided to have the case transferred. The Respondents were not in custody, but they did suffer as a result of the delay. 6. For these reasons we allow the application. We set aside the sentences and we impose immediate sentences of 12 months' imprisonment in each case. 29th September 1982 Representation: J. Hingorani (Haldane, Midgley & Co.) for 1st Respondent. J. Mullick (Kwan and Kwan) for 2nd Respondent. A.P. Duckett for Crown. |