The Queen v. Lee Cheung

HCMA000259/1988

IN THE SUPREME COURT OF HONE KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 259 OF 1988

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BETWEEN

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Coram: Hon Bewley, J. in Court

Date of hearing: 9th June 1988

Date of delivery of judgment: 9th June 1988

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J U D G M E N T

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1. The appellant was convicted of trafficking in dangerous drugs, contrary to Section 4(1)(a) of the Dangerous Drugs Ordinance, Cape 134 and was sentenced to three years imprisonment.

2. I dismissed his appeal against conviction, in which he was unrepresented, on the grounds that it was a straightforward issue of fact; the magistrate believed the police witnesses and disbelieved the appellant,

3. The evidence was that the appellant was observed through binoculars, while standing at the entrance to a park at a street junction in Yau Ma Tei. After five minutes he was approached by a man who gave him some money and received a white packet in return. Both men were arrested. The white packet was taken from the other man and was later found to contain 2.89 grammes of a mixture containing 0.22 grammes of salts of esters of morphine, No drugs were found on the appellant; but there aws $1,200 in his pocket. The other man was charged with possession of the drugs, but absconded before trial.

4. The appellant is 37. He has 14 previous convictions, including one in the District Court for possession of dangerous drugs for the purpose of unlawful trafficking,

5. It was submitted on his behalf by Mr Wong that the sentence was outside the normal range for this offence. He cited two cases in which appeals against sentence for trafficking in dangerous drugs have been allowed.

6. In Szeto Wan v. R.⁽¹⁾Jones J. reduced the sentence on an appellant with no previous convictions for drug offences from two years to 18 months. The quantity of mixture in that case was, however only 0.19 grammes. Counsel for the Crown informed the court that at that time the normal tariff for offences of that nature was between two and two and a half years imprisonment.

7. In R. v. Luk Wing⁽²⁾ Barnes J. reduced the sentence from three years to two and a half yeas imprisonment. Unfortunately the judgment does not indicate the amount of drugs involved.

8. In R. v. Yeung Yin-kan and Another⁽³⁾, silke J.A. said at p. 5:-

"Trafficking on the other hand, is the end result of the activities of the storekeeper or courier and it is even more serious than possession for the purpose of unlawful trafficking. It cannot be right, in our view, that the quantity found can be the only criterion upon which sentence is based even though the maximum sentence provided by the legislation is the same for each offence. It is undoubtedly a relevant factor for the consideration of a sentencing judge but the overall consideration must be the actual selling of these drugs to the public. The internal scale within the maximum permitted must be graduated to the nature of the offence charged. do not therefore think that the tariffs of CHAN Chi-ming [1979] H.K.L.R. 491 are applicable where the charge is that of direct trafficking."

9. This view was endorsed by the Court of Appeal in R. v. Chow Kwok-ping⁽⁴⁾, where the same judge said at p. 3 ;

"Chan Chi Ming [1979] H K L R. 491 is not a case which directly applies to a person found in the actual act - of trafficking. It refers to persons charged with possession of dangerous drugs for the purpose of unlawful trafficking. These courts have taken a more serious view of  those persons found, as  the Applicant, actually trafficking in drugs.

The previous conviction is a factor which can be taken into consideration. It would, of course, be wrong if the sentence were to be unusually high simply because of a previous record. The sentencing judge was entitled to bear in mind that this the second time that the Applicant had been convicted of trafficking.

10. Both these latter cases involved considerably larger quantities of heroin than the present case, but the principle enunciated nevertheless holds good in the case of smaller amounts.

11. Had the appellant been convicted of possession of this quantity of drugs for the purpose of trafficking, the sentence should have been at least two years on the basis of Chan Chi Ming v. R.⁽⁵⁾.

12. This is a more serious offence and there is nothing to be said in mitigation unless it be that the appellant was caught making only a single sale.

13. It cannot be said that the sentence of three years is excessive. The appeal against sentence is also dismissed.

(1) Mag. App. 805/83

(2) Mag. App. 98/85

(3) C.A. 120/84

(4) C.A. 528/86

(5) [1979] H.K.L.R. 419

Representation:

Mr M. Wilson, Crown Counsel, for Respondent

Mr H.Y. Wong, assigned by D.L.A., for Appellant