Attorney General v. So Chin Chiu

CAAR000010/1993

IN THE COURT OF APPEAL

1993, No. 10
Application for Review

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Coram: Hon. Macdougall, V.-P., Sears and Kaplan, JJ.

Date of hearing: 19 January 1994

Date of judgment: 19 January 1994

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The respondent pleaded guilty before Deputy Judge Wong in the High Court on 1 September 1993 to trafficking in a dangerous drug, namely 93.26 kilogrammes of herbal cannabis and was sentenced to three years' imprisonment. On 12 October the Attorney General was granted leave by the Chief Justice to apply to this court for review of that sentence.

2. Briefly the facts were these. On 31 October 1992 police officers were searching premises in Wan Chai when the respondent knocked the door. He was found to be in possession of a pawn ticket upon which was written the address of a premises in Mongkok. He was the tenant in occupation of those premises and was found in possession of the keys to them. In a wardrobe inside the premises were three boxes sealed with adhesive tape and containing 95 blocks of herbal cannabis which later formed the subject of the count in the indictment to which the respondent pleaded guilty.

3. Under caution the respondent stated that he had been asked by a friend to store the cannabis for a fee. Out of monetary greed he agreed to do so.

4. In passing sentence the deputy judge stated that he accepted that herbal cannabis is less harmful than cannabis resin, but that in view of the large quantity which the respondent had in his possession, a starting point of four years' imprisonment was appropriate, and that, taking into account the respondent's clear record, his plea of guilty and the fact the drug was herbal cannabis as distinct from cannabis resin, he would grant a discount of 25%, resulting in a sentence of three years' imprisonment.

5. Mr. Saw contended on behalf of the Attorney General that the sentence was manifestly inadequate and wrong in principle. He submitted that the starting point for sentence of four years' imprisonment was completely out of line with the guidelines laid down in the Attorney General v. Chan Chi-man [1987] HKLR 221. In that case this court stated that the tariff for possession of cannabis resin for the purpose of unlawful trafficking was four years and upwards for quantities in excess of 9 kilogrammes, and that it was open to the courts, if they thought fit, to take into account the less damaging effect gramme for gramme of herbal cannabis and the more damaging effect of cannabis oil compared with that of cannabis resin, and to adjust sentences accordingly.

6. The quantity of herbal cannabis in the present case exceeded by ten times the quantity of cannabis resin that would justify a sentence of four years' imprisonment. Allowing for the fact that the seized substance was herbal cannabis rather than cannabis resin, we think that a proper starting point for sentence for such a huge quantity, which was undoubtedly destined for large scale trafficking purely for monetary gain, would have been one of eight years' imprisonment.

7. We think it opportune to repeat what was said by Roberts C.J. in delivering the judgment of this court in The Queen v. Ng Tat-shing Cr. App. 56/1979 (unreported):

"This court has made it clear on other occasions that, although the general rule may be that an accused person with a clear record should not normally be given a deterrent sentence, there are exceptions to this general rule. Among these exceptions are cases of unlawful trafficking in drugs, kidnapping, and cases where there is an element of corruption."

We would add that this includes cases of possession of a dangerous drug for the purpose of unlawful trafficking.

8. Although the Deputy Judge did not specifically say so, it may well be, since he stated that he had taken into consideration all that the respondent's counsel had said in the course of his appeal in mitigation of sentence, that he took into account that the respondent had cooperated with the police by giving them the names of the persons whom he claimed had asked him to look after the drugs. The Crown did not accept that this information was of any value.

9. In this regard we repeat what was said by this court in R. v. Tam Yin-chung Cr. App. No. 84 of 1992 (unreported):-

"..... credit should only be given for genuine cooperation which results in the furnishing of reliable and useful information. Offenders who simply tell the police what they already know or who give information which is merely vague or which relates to alleged offenders who are safely outside the jurisdiction, should not expect to receive a reduction in sentence on that account. Promises to cooperate do not justify any reduction. Where an offender gives valuable cooperation after the final disposal of his own case, it then becomes a matter for the executive to take such action as it considers appropriate by way of remission of sentence."

10. Thus the mere fact that the respondent had supplied those names to the police is not a factor which would have justified a discount in sentence. The circumstances in which the respondent was found in possession of the cannabis were such that he had no realistic prospect of success in a contested trial. Nevertheless, he was still entitled to some credit on account of his plea of guilty. Bearing that in mind together with the fact that this is a review in which we are imposing a sentence that is greatly in excess of the original sentence, we allow the application, set aside the sentence of three years' imprisonment and substitute for it one of six years' imprisonment.

Representation:

Mr. D.G. Saw, S.C.C. for Crown Prosecutor

Mr. Wong Po-wing assigned by DLA for respondent