Tang So v. The Queen

CACC000428/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 428 OF 1973

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Coram: Pickering, J.

Date of Judgment: 25th June, 1973.

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JUDGMENT

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1. The appellant pleaded guilty to a charge of possession of dangerous drugs for the purpose of trafficking, namely 227 grammes of prepared opium and 506 grammes of opium dross, and also to a second charge of possession of a pipe fit and intended for the purpose of smoking opium. He was sentenced to 18 months imprisonment on the first charge and to one month's imprisonment concurrently upon the second charge and appeals against sentence.

2. The appellant has been in Hong Kong for the past 40 years and has four daughters, one of whom is married and three of whom are still studying in Hong Kong and also four sons, all apparently adult. It is common ground that the appellant is heavily addicted to opium and has been smoking it for 40 years, that is to say since long before the practice was made illegal. His consumption of opium is heavy and it was submitted by his counsel in the court below that the quantity found represented no more than some four months supply for the appellant, although counsel conceded that some of the opium was no doubt intended for sale. His criminal record is clear with the exception of two convictions for smoking opium, the last of which was 18 years ago. Mr. Patrick Yu, for the appellant, submitted that the sentence was severe since the drug in question was opium and not heroin and since there was no evidence of dealing on a large scale, it being difficult to draw the line between what was in stock for his own consumption and what was intended for sale; moreover, Mr. Yu urged, the appellant was 60 years old by Chinese reckoning, had a long addiction to opium and had been described by his solicitor in the court below as "a very sick man". I might add that there was no medical evidence as to this, but the appearance of the appellant in the dock suggested to the lay eye that the assertion was not without foundation.

3. Mr. Corrigan, for the Crown, said that he could not quarrel with anything advanced by Mr. Yu and that he understood that the usual scale of sentencing in the case of opium, even for trafficking, was six months to a year and that for simple possession a common sentence was a substantial fine; in this case, it might be said that the sentence had gone beyond the normal scale.

4. This typically fair-minded approach has prompted me to a greater reduction in the sentence imposed than I would otherwise made and in all the circumstances the appeal is allowed in respect of the first charge, the sentence of 18 months imprisonment imposed thereon being set aside and substituted by a sentence of 9 months imprisonment. The appeal against sentence in respect of the second charge is dismissed.

Representation:

Patrick Yu (David K.W. Tsang & Co.) for appellant

Corrigan, S.C.C., for respondent.