Joshua Wilson Fenwick Jr. v. The Queen

CACC000356/1976

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Coram: Pickering, J.A., Trainor & Cons, JJ.

Date of Judgment: 20th July 1976.

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JUDGMENT

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Pickering, J.A.:

1. The appellant was convicted of trafficking in a dangerous drug and sentenced to 3 ½ years' imprisonment.

2. He is a young American man of 24 who was employed by a firm called Manufacturing Systems in Guam as a mechanical engineer. He is married to a Japanese lady and has one child. Following an accident at work in respect of which he received Workmen's Compensation he went alone on a short holiday to Thailand. In the evening of 28th February this year he arrived at Kai Tak Airport on board Flight No. PA002 from Bangkok. At the baggage examination counter he replied, on being asked, that he had nothing to declare but two packages which he was carrying were found to contain more than eleven thousand grammes of cannabis in leat and stalk form and this was the drug in respect of which, by virtue of the presumption contained in s.46 of the Dangerous Drugs Ordinance, he was charged with trafficking.

3. We propose to say no more about the appeal against conviction than that we could find no merit in it and that it was dismissed.

4. In regard to the sentence of 3 ½ years' imprisonment we have taken into account that the product was cannabis and not one of the so called hard drugs. But what has been of prime influence in persuading us to allow the appeal and reduce the sentence is a matter which had never been put before the learned trial judge in mitigation and which, so far as can be ascertained from the judge's Reasons for Sentence, was never in the mind of the judge. It was the undisputed evidence of the appellant, supported by documents, that it was never his intention to enter Hong Kong except for the purpose of transferring from one plane to another on the way from Bangkok to Guam. However, at the Pan American desk at the airfield in Bangkok he was told, having parted with his luggage, that his flight was delayed and would not arrive in Hong Kong in time to connect with the flight from Hong Kong to Guam; as a result it would be necessary for him to stay overnight in Hong Kong and the airline had arranged accommodation for him, a fact which was attested to by a Complimentary Layover Expense Certificate in favour of the Hyatt Hotel Hong Kong.

5. It is thus apparent that the appellant did not voluntarily bring the drugs through the customs point at Kai Tak Airfield but that his so doing was what might be termed an enforced accident. His intention was to go from Bangkok to Guam merely changing planes and remaining in transit in Hong Kong. That is not to say that such conduct whilst bearing cannabis would not have constituted an offence. An offence it certainly is but not an offence comparable in gravity to importing the drug into Hong Kong for the purpose of there disposing of it. We have no evidence as to the law regarding possession of cannabis in either Thailand or Guam and whilst the appellant's importation of the drug into Hong Kong was unquestionably an offence under Hong Kong law, we consider for the reasons which we have given that the sentence of 3 ½ years', otherwise impeccable, was excessive because the fact to which we have referred was never brought to and never apparently entered the mind of the learned trial judge. So far as Hong Kong was concerned the appellant was, as he urged upon us in mitigation, a victim of circumstances. He told us that his wife and child were now without any home of their own and without support by virtue of the fact that, her parents being against the marriage of the appellant to their daughter, the latter had turned her back on her parents in order to marry him, the parents being still unforgiving.

6. It was for these reasons that we allowed the appeal, set aside the sentence of 3 ½ years' imprisonment and substituted it by one of 2 years' imprisonment.

Representation:

Miss Fi-lan Chua (Helen A Lo & Co.) for appellant.

Sharwood, C.C., for respondent.