The Queen v. Fan Wai Ping

CACC000312/1986

BETWEEN

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Coram: Li, V.-P., Silke, J.A. & Jones, J.

Date of Hearing: 12 August 1986

Date of Judgment: 12 August 1986

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JUDGMENT

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Silke, J.A.:

1. The Applicant, Fan Wai Ping; was convicted after trial before Mr. H.M. Sinclair, sitting as a Deputy Judge of the District Court, on two offences. The first being in possession of a dangerous drug for the purpose of unlawful trafficking and the second assaulting a police officer in the due execution of his duty. He received a sentence of four years on the first offence and two months consecutive on the second. He now seeks leave to appeal against the sentence imposed upon him on the drug offence.

2. It was the Crown's case that he was in possession of a dangerous drug, 91.27 grammes of a mixture containing 10.64 grammes of salts of esters of morphine and this for the purpose of unlawful trafficking.

3. A police party had been keeping observation at the Au Tau Roundabout at Yuen Long. At about a quarter to five in the afternoon of the 6th of February of this year they saw the Applicant walking out of a pedestrian subway together with another person. That other person subsequently acquired the name "Nagi Chai". The two stopped approximately 50 feet away from where the police were. The Applicant went up a slope by himself while Ngai Chai waited on the pavement. The Applicant came back, down the slope, and at that point the police party approached, announced who they were and both the Applicant and Ngai Chai ran away. Ngai Chai was chased by a sergeant who was in the police party but he was not apprehended. The Applicant was apprehended by one of the police constables whom he struck in the stomach, struggled with and struck upon the nose so that the constable's nose bled. A second constable came up and assisted in his being subdued.

4. The Applicant was then searched and a newspaper packet was found upon him which contained 10 polythene packets, or sachets as the trial judge called them. These contained the total quantity of the mixture referred to in the charge.

5. In the course of the trial, the Applicant gave evidence. His defence was that he was never in possession of the drugs which the police had said were found upon him. He had gone there to buy a packet from the other man, Ngai Chai, from whom he had bought before and that it was Ngai Chai who had the drugs. The drugs were discovered somewhere and then planted upon him. This defence was rejected by the trial judge and, as the judge said, that resulted in the Applicant's adducing no evidence to rebut the presumption in Section 46 of the Dangerous Drugs Ordinance.

6. Mr. Bernacchi, with him Mr. Chan, argued this application before us and has raised three points. The first: that the actual salts of esters of morphine contained in the mixture was an exceptionally weak one and the judge did not consider this aspect; second that, consequent upon that, the guidelines set out in Chan Chi Ming ⁽¹⁾ have only "little relevance" to this case, third that in view of the small quantity of the salts in relation to the whole of the mixture, the trial judge should have made allowance for the possibility, indeed Mr. Bernacchi in his argument said "the probability", that the Applicant may have been an addict himself selling on a small scale in order to gain sufficient money to satisfy his own needs or to be supplied with drugs for his own consumption in return for his purveying them.

7. The trial judge in passing sentence made reference to the guidelines as they are set out in Chan Chi Ming ⁽¹⁾. This quantity of mixture comes within the second category, that is "small" between "30 and 150 grammes", the suggested sentence being one between "three and five years".

8. Mr. Bernacchi has urged us strongly that because of the small amount of salts of esters of morphine in this mixture - and he relies on Pravit Pramechit v. R. ⁽²⁾ where the drug was esters of morphine, where it was said that the guidelines in Chan Chi Ming ⁽¹⁾ were only indirectly relevant to possession of the mixture - we should equally not approve of the use of the guidelines here.

9. The whole point of Pramechit ⁽²⁾ was the argument mounted to the Court by counsel then appearing that the Chan Chi Ming ⁽¹⁾ guidelines should be applied to the simple quantity of the mixture containing the quantity of esters of morphine, thus ignoring the nature of the drug and that it could produce a considerably greater quantity of a saleable mixture. The Court did not agree.

10. It was made clear in Chan Chi Ming ⁽¹⁾ that the saleable mixture itself is the matter which should concern the Court. Quite logically so for it is that mixture which reaches the street.

11. The tariffs in Chan Chi Ming ⁽¹⁾ are guidelines, they are not absolute. It was made clear in the course of that judgment by my Lord the Chief Justice that other factors can be taken into consideration in arriving at what is the proper sentence in a drugs case of this nature.

12. We do not agree that those guidelines have no or little - relevance here. The trial judge was perfectly entitled to consider them. He did not take into consideration matters which he should not have nor failed to consider matters which he should. The very issue argued before us was argued before, him and he rejected it. He was right to do so. In his Reasons there was a reference to the Applicant's previous record. This was set out in the context of the fact of a record not as something which enhanced the sentence which the judge had in mind.

13. There was no evidence in the Court below to suggest that the Applicant was in possession of these packets partly for his own consumption and partly for sale so that he was able to fund that consumption. He had a previous conviction for being in simple possession and he could well be an addict.

14. In Chan Chi Ming ⁽¹⁾ when one comes to the ''very small quantity", and I would emphasize that Chan Chi Ming ⁽¹⁾ defined this as being under 30 grammes, the Court said that allowance could be made for the possibility that the accused may be an addict and was selling on a small scale in order to gain sufficient money to satisfy his own needs. But this was not the case which was made in the Court below nor was the quantity a "very small quantity".

15. We do not think that it is incumbent upon a trial judge to erect fanciful defences when he comes to consider sentence. With respect to the arguments of Mr. Bernacchi, we can see no merit in this appeal. The application for leave to appeal is dismissed.

(1)     [1979] H.K.L.R. 491

(2)     Criminal Appeal No. 665 of 1982

Representation:

Brook Bernacchi, Esq., Q.C. & Kenneth Chan, Esq., (Roger S.K. Wong & Co.) for Applicant.

J.L. Abbott, Esq. for Crown.