The Queen v. Huynh Ninh Tan

CACC000408/1986

BETWEEN

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

Date of Hearing: 14 November 1986

Date of Judgment: 14 November 1986

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JUDGMENT

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Li, V.-P.:

1. The applicant pleaded guilty to possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to 7 years imprisonment.

2. The admitted facts were that on 2nd May this year he was leaving Hong Kong by air through Kai Tak Airport. He was there found to be in possession of 912.81 grammes of a mixture containing 104.56 grammes of salts of ester of morphine.

3. He came from the United States of America where he had a regular job in a restaurant with a regular income. He indulged in drug abuse and became an addict. The supplier of the drugs in America induced him to come to Hong Kong to purchase drugs to be brought back to America. He was provided with travelling expenses. He came to Hong Kong. Through the introduction of a friend he approached a supplier who was willing to supply him with what he wanted. He liaised with his friend in America. He had money brought to him by his girlfriend. He used the money to buy the drugs for the purpose of bringing them back to America.

4. Ever since his arrest he had been cooperative with the police. He pleaded guilty before a magistrate and was committed for sentence to the High Court. He indicated, at that time, that he was willing to give evidence against the supplier in Hong Kong who was arrested by the proper authorities as a result of the information he gave. All these facts were put before the trial judge.

5. In passing sentence the trial judge said that this was a dangerous game. To quote the judge's words:

You took a big risk and you were caught and you must pay the penalty. I do have regard to your plea of guilty and your co-operation with the police. But for that your sentence would be considerably longer. Having regard to the quantity of drugs, the sentence must be one of 7 years' imprisonment.

6. In the case of Chan Chi-ming v The Queen ⁽¹⁾ the range of sentence as laid down was when the total quantity of a mixture was 150 to 1,000 grammes is 5 to 8 years. At p. 493 the learned Chief Justice said:

Trafficking in dangerous drugs, and possession for this purpose, are offences of the utmost gravity. We need not elaborate upon the appalling social and family consequences of the abuse of drugs. In our view, those who take part for gain in drug trafficking can expect, and should receive, no mercy from the courts. Therefore, the fact that the accused has a clear record will do little to reduce his sentence, though assistance to the police and a plea of guilty may.

7. By that we understand a sentence in the range of 5 to 8 years would be a normal sentence for a conviction after trial. Thus a plea of guilty and assistance to the authorities would merit a reduction below 8 years. In passing the sentence of 7 years the judge observed that had he not pleaded guilty and been co-operative with the police his sentence would have been one year's difference from the top end of the tariff. Otherwise any sentence would not be considerably shorter. The judge in passing sentence merely mentioned his plea of guilty and the co-operation with police. No mention had been made by the judge that the applicant indicated he was willing to give evidence.

8. In the circumstances, we feel that too little allowance had been given for the combination of all the mitigating features. We feel that a sentence of 5 years is appropriate. Accordingly we grant leave to the applicant to appeal against sentence, we treat the application as the appeal proper. The appeal is allowed. The sentence is reduced to one of 5 years.

9. Perhaps we should add that the applicant has withdrawn an offer to give evidence against the supplier in Hong Kong. The reason being that he considered he had not been given sufficient allowance.

10. We would like to indicate quite clearly that this Court is not a place for bargains. Our decision had not been influenced in any way by his indication that he has now withdrawn offer to give evidence. We view his stand at the time he was before the sentencing judge. If he should change his mind and give evidence there is nothing to bar the applicant from petitioning his Excellency for a further commutation of sentence.

Representation:

Mr. A.M. Niamatullah (D.L.A.) for Appellant

Mr. A.A. Bruce (Crown Prosecutor) for Respondent

(1)    1979 HKLR 491