R. v. Larm Tat Ming

CACC000427/1992

IN THE COURT OF APPEAL

1992, No. 427
(Criminal)

____________

____________

Coram: Silke, V.-P., Power & Macdougall, JJ.A.

Dates of hearing: 20 January 1993

Date of judgment: 20 January 1993

Date of reasons handed down: 19 February 1993

_______________

J U D G M E N T

_______________

Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Larm Tat Ming, appeared for trial before His Honour Judge Yeung in the District Court on a charge sheet which contained two charges. The first alleged trafficking in dangerous drugs on 17th July 1991 at Mongkok, the drug being 826.2 grammes of cannabis; the second: - which was clearly an alternative - alleged possession of a dangerous drug for the purpose of unlawful trafficking and related to the same place and the same quantity of the same drug. These charges were joint charges. The applicant was the first named defendant - "D1" - and Leung Hung Cheong, the second named defendant - "D2". We are not concerned with D2.

3. At trial, the applicant pleaded guilty to the offence of unlawful trafficking and was sentenced to a period of 15 months imprisonment. He sought leave to appeal against that sentence and at the conclusion of the hearing, we granted leave, treated the hearing as the hearing of the appeal and allowed the appeal to the extent that the 15-month period was reduced to one of 12 months imprisonment. We stated that we would give our reasons later. This we now do.

4. The undisputed facts showed that the applicant was in the business of drug trafficking. An undercover police officer was introduced to the applicant and his co-accused. There was a discussion on how much of the "stuff" was required and the undercover police officer was told that there was about two to three kilograms available. He wanted to purchase two kilograms and the applicant named the price as $22,000 per kilo. Bargaining then took place and a final price of $41,000 for the 2 kilos was agreed.

5. As arranged, the transaction took place that night, that is the night of 17th July 1991. The undercover police officer was contacted by the applicant, to whom he had given his pager number, as to where and when. Being told to come in a vehicle, another undercover police officer rented a private car and both went to the designated place which was the Fairwood Fast Food Shop in Sai Yeung Choi Street. They found on arrival the two accused sitting together on the second floor. The two undercover police officers joined them. When the second accused asked had the money had been brought, the first undercover police officer took out a wad of money and showed it to both of the accused. The applicant then suggested they go to the toilet and try the stuff stating that he had two tubes of it there. This was done and the undercover police officer and the applicant returned to the table. They then went to the car. The applicant went away for a short while and then returned holding a brown paper bag. In it were polythene bags full of herbal cannabis. The arrest signal was given and both accused were then arrested.

6. Mr. Lunn who appears for the applicant in this court submitted one ground of appeal which reads:

"In light of the Appellant's plea of guilty to Charge 1 at his trial, the quantity and form of the dangerous drugs, namely herbal cannabis, and in all the circumstances of the case the sentence of 15 months imprisonment imposed upon the Appellant is manifestly excessive."

7. In passing the sentence he did the trial judge said (page 10):

"The offence of trafficking in dangerous drugs is always very serious irrespective of the nature of the dangerous drugs."

8. With these sentiments we would entirely agree.

9. He then went on to mention that counsel appearing for the applicant before him had referred him to a number of authorities. Unfortunately, the judge made no reference to what these authorities were. Nor did he indicate what his starting point was. As this court had said on so many occasions, it is of considerable assistance if trial judges were to indicate specifically what their starting point of sentence would have been after trial and then to indicate the actual sentence passed allowing for the mitigation.

10. We must assume that one of the authorities to which the trial judge was referred was the Attorney General v. Chan Chi Man [1987] HKLR 221. That decision, amongst other things, dealt with the appropriate tariff sentence for possession of cannabis resin for purpose of unlawful trafficking. It was suggested that for over 500 grammes, the sentence should be one of 4 to 8 months imprisonment and that for over 1,000 grammes, the sentence should be one of 8 to 16 months imprisonment. Here, as we have indicated, the total quantity was 826 grammes. On the basis of Chan Chi Man and were the substance cannabis resin - which it was not - the starting point sentence would be somewhere in the region of 8 months.

11. Chan Chi Man also recognised the less damaging effects, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin. The judgment, at page 225, suggested that it would be open to the courts to take that into account.

12. The tariffs were, of course, for convictions after trial. Here, there was first the plea of guilty and second the form of drug: herbal cannabis. This, on the face of it, would reduce the 8 months starting point. But Chan Chi Man did not go on to consider direct trafficking by persons who were in the business of trafficking. Further, there does not appear to have been any evidence presented to the court in 1987 of the incidence of cannabis usage or of cannabis trafficking. We found ourselves in some difficulty because we consider the tariffs set out in Chan Chi Man to be ludicrously low when applied to those who traffic. We are expressly not considering mere possession of the drug.

13. In granting leave and allowing the appeal as we did, we bore in mind the "business of trafficking" aspect of this case which we thought should be reflected in any sentence to be imposed, whatever the tariffs might be, and it was for that reason that we arrived at the quantum of 12 months imprisonment.

14. We thought the court to be in urgent need of assistance for the purpose of generally revising the tariff sentences set out in Chan Chi Man for cannabis. That would obviously be for another occasion. As we indicated at the conclusion of the hearing, when we announced the result of the appeal, we would be grateful for such assistance from the Attorney General on the appropriate occasion. We have in mind the general type of assistance afforded to this court in R. v. Lau Tak Ming [1990] 2 HKLR 370.

Representation:

Michael Lunn, Esq. (D.L.A.) for Applicant

Stephen Wong, Esq. for Crown/Respondent