Hong Kong Special Administrative Region v. Leung Kam-yung

HCMA000250/1997

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 250 OF 1997

(On appeal from NKC 494 of 1997)

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Coram: Hon Mr Justice YEUNG, in Court

Date of hearing: 10 July 1997

Date of judgment : 10 July 1997

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J U D G M E N T

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1. Having been convicted of a charge of trafficking in a small quantity of a dangerous drug, namely, 0.6 gramme of a mixture containing 0.7 gramme of salt of esters of morphine, the appellant was sentenced to a term of 27 months' imprisonment. The sentencing guidelines for the offence of trafficking in less than 10 grammes of drug has been established to be one of two to five years' imprisonment. The learned Magistrate adopted a starting point of two years and then, in effect, increased it to a term of 27 months' imprisonment by reason of certain factors that he termed as aggravating factors; namely, that the applicant had been trafficking in dangerous drugs for two weeks prior to her arrest, and that she allowed her apartment to be used by others for the purpose of packing dangerous drugs.

2. I have the greatest reservation as to whether the learned Magistrate was entitled to take into consideration such matters which were in fact not relevant to the charge in question at all. In any event, in my view, in the light of the very minute quantity of dangerous drugs in this case, taking into consideration perhaps that the appellant had no previous similar conviction, although this factor would not be of too much significance, I am of the view that a term of 27 months' imprisonment in the circumstances is excessive.

3. In my view, a sentence of 20 months' imprisonment is more appropriate, taking into consideration the quantity of drugs involved and the circumstances of the case, including the personal background of the appellant. I am of the view that a term of 20 months' imprisonment would be adequate to reflect the degree of her culpability. In the circumstances, the appeal against sentence is allowed. The original sentence of 27 months' imprisonment is hereby quashed and in substitution thereof, a term of 20 months' imprisonment.

4. Counsel for the prosecution raised the further issue, requesting the court perhaps in addition to fine the applicant the money which was found to be in her possession. It was really quite clear in her statement to the police that the appellant had, in fact, admitted that this $2,000-odd was proceeds of drug trafficking, but somehow this aspect seem to have escaped the learned Magistrate and because of that, he decided not to confiscate this $2,000-odd.

5. Counsel for the prosecution now argues that the court can consider imposing a fine, perhaps for the purpose of depriving the applicant of the proceeds of her criminal act. The court must draw a distinction between a confiscation order and a fine. If certain exhibits are seized in connection with a drug trafficking activity or other criminal activities, the proper order to make is to confiscate the exhibit. It is, in my view, wrong to make use of a fine in substitution of a confiscation order.

6. Bearing in mind the term of 20 months' imprisonment which I have imposed in substitution of the original 27 months, and that 20 months' imprisonment involved is also a significant term of imprisonment, it is, in my view, not necessary and indeed, in my view, not proper for the court to impose a fine in place of the confiscation order.

7. In that regard, I do not propose to make any order in line with the suggestion by Mr WONG to fine the applicant.

Representation:

Mr Wesley WONG, SGC for HKSAR

Mr Graeme MacKay (DLA) for Appellant