The Queen v. Chan Wai-ying and Another

Criminal law - sentencing - possession of dangerous drugs for the purpose of unlawful trafficking - whether sentencing guidelines set out by Court of Appeal in R. v. CHAN Chi-ming (1979) H.K.L.R. 491 refer to quantity of mixture or quantity of dangerous drugs within the mixture - s.7 Dangerous Drugs Ordinance, Cap. 134.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CRIMINAL JURISDICTION

CASE No. 198 OF 1981

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Coram: H.H. Judge Cruden in Court

Offence : Possession of dangerous drugs for the purpose of unlawful trafficking (管有危險藥物作非法販運用途)

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REASONS FOR SENTENCE

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1. Dl stands convicted of two charges of possession of dangerous drugs for the purpose of unlawful trafficking.

2. She is aged 43, the mother of 6 children of whom who - aged 6 and 8 - are still at school. Her aged mother of 80 years is also a member of her family and she looks after her; she cannot walk. D1 has a clear record.

3. Convictions under Section 7(1) call for an immediate custodial sentence in the absence of very special circumstances. I am well satisfied that there are no such circumstances here and that an immediate custodial sentence is required. The sole remaining question is the proper length of the sentence.

4. In this particular area of sentencing the Court has the assistance of the Court of Appeal's decision in R. v. CHAN Chi-ming (1979) H.K.L.R. 491, in which detailed sentencing guidelines are set out.

5. The guidelines are based on the quantity of dangerous drugs involved and may be summarised as follows:

6. In this case the total mixture of dangerous drugs comprised 81.28 grammes and the mixture was found to include 23.88 grammes of dangerous drugs.

7. If the guideline quantities refer to the amount of "mixture" then this case would, subject to any exceptional aggravating or mitigating factors, cause the Court to consider a sentence in the 3 to 5 years group. If on the other hand I have to consider, not the mixture, but the actual quantity of dangerous drugs then I would have to consider a sentence in the 2 to 3 years group. Does the judgment in setting out these guidelines indicate whether the stated amounts refer to the amount of the mixture or the amount of the drugs? Here, with respect, the judgment is less clear. For the judgment, is open to two conflicting interpretations. First, the judgment at page 492 expressly states that it is:-

"the quantity of the mixture which should be looked at, rather than its content. This is because it is the mixture which is sold to the consumer."

8. If the judgment did not go beyond that clear statement then obviously it is the amount of the mixture which is to be taken into account. In that event the instant amount of the mixture, namely 81.28 grammes would fall into the 30 to 150 grammes group attracting a 3 to 5 years sentence.

9. When the Court of Appeal came to set out its detailed guidelines, it merely referred to the quantity of drugs and makes no distinction between the mixture and the content of drugs within that mixture. However, as the judgment earlier states that the correct approach is to consider the quantity of the mixture the guidelines would by themselves, in the absence of any other factors, be clear. But the difficulty arises, if that is the proper principle, of reconciling it with the final findings in that appeal. For the quantities the Court of Appeal had to consider were: -

1. Amount of mixture - 146 grammes.

2. Amount of drugs - 47.7 grammes.

10. Applying the Court of Appeal's guidelines the 146 grammes would bring the facts into the very upper limits of the second group attracting a maximum sentance of 5 years. Yet in respect of the lower court 's sentence of   5½ years the Court of Appeal declared that that sentence:

"was substantially in excess of the usual sentence (or 'tariff' to use a commonly employed phrase )for unlawful trafficking in amounts of this nature."

11. A sentence of 5½ years against a tariff of 5 years could hardly be classified as "substantially in excess" of that tariff. If, however, the guidelines are applied to the amount of the drugs, namely 47.7 grammes then the facts would have brought the sentence down among the lower levels of that group with a minimum of 3 years. In that event a sentence of 5½ years would clearly have been "substantially in excess". However, 47.7 grammes is certainly a little more than the minimum quantity of 30 grammes. The Court of Appeal, in addition to declaring these guidelines, reduced the sentence of 5½ years to 3½ years. So within the 3 to 5 years sentencing group for quantities from 30 to 150 grammes it selected 3½ years as the appropriate sentence and declared that 5½ years was "substantially in excess"of the norm. If the Court of Appeal adopted the amount of the drugs within the mixture, namely 47.7 grammes and not the larger amount of the mixture, then the reduced sentence imposed corresponds precisely with those guidelines. However, that application of the guidelines would conflict with the earlier express statement of general principle that it is the amount of the mixture that should be considered. On the other hand, if the amount of the mixture is adopted, 146 grammes, it is very near the maximum amount of 150 grammes under the guidelines and would presumably attract a sentence of 5 years or close to that maximum rather than near the 3 years minimum.

12. The position therefore is that it is not wholly clear whether the guidelines do refer to the mixture or the drugs within the mixture. The better view probably is that the Court of Appeal intended that courts should apply the guidelines to the larger quantity of the mixture even though it did not in the case before it apply that standard. But the position perhaps is not without doubt.

13. In the instant case the quantity of dangerous drugs, as against a maximum of 30 grammes in the first group, would attract a sentence of 2 to 3 years. If the amount of the mixture is adopted then the facts fall within the second group and would attract a sentence of more than 3 years.

14. Against that background, I take into account that the defendant has a clear retard although that is less a mitigating factor than it might be in the case of a conviction for a non-drug offence. For the Court of Appeal also stated that under the guidelines a clear record "will do little to reduce" a sentence. Nevertheless it is a mitigating factor than must be given some weight although clearly less than usual. I also take into account that the defendant, on the assumption that Madam CHOW Ah-man existed, played a lesser role.

15. All these factors lead me to impose a lesser sentence than I would otherwise. In the circumstances the defendant can consider herself fortunate to be sentenced to only 2 years imprisonment on both the 1st and the 2nd charge. Both terms are to be served concurrently

DATED this 20th day of January, 1982.