The Queen v. Lee Kam on

CACC000043/1990

BETWEEN

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Coram: Sir Derek Cons, V.-P., Silke, V.-P & Kempster, J.A.

Date of Hearing: 12 October 1990

Date of Judgment: 12 October 1990

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JUDGMENT

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Sentence: Relevance of sale value where the quantity of drug is large

Silke, V.-P.:

1. This is the judgment of the Court.

2. Lee Kam On was convicted, after trial before Sears J. and a jury, on a single offence of possession of dangerous drugs for the purpose of unlawful trafficking. The particulars of the offence alleged that it took place on 20th June 1989 outside the Good Luck Theatre in Amoy Gardens, Kowloon. The quantity of drugs stated to be in his possession was 2,733.92 grammes of a mixture containing 137.55 grammes of salts of esters of morphine.

3. The applicant, upon conviction, was sentenced to a period of 12 years' imprisonment. He originally sought leave to appeal against both conviction and sentence but has, in the face of the Court, abandoned his application in respect of conviction. It was dismissed accordingly. In respect of the sentence he has had the assistance of Mr. Hemmings instructed by the Director of Legal Aid.

4. Very briefly, the facts were that a police constable saw the applicant walking towards him carrying a bag. He stopped and questioned him, took charge of the bag from the applicant and the applicant then ran away. There was a chase, in which an auxiliary police constable joined, and the applicant was apprehended. On arrest he admitted that that bag contained, as in fact it did, "white powder".

5. Before passing the sentence he did, the trial judge had been addressed by both the then counsel for the Crown and the applicant's then counsel. The Court asked counsel appearing for the Crown what was the actual value of the quantity of drugs given that the mixture was of a low purity. The judge was told that it was $600,000. It is freely conceded that this information was incorrect, there being some slip between the provider of the information and counsel. This is not a criticism of counsel. We are told that the true value was $54,678.40.

6. What the Courts are concerned with in relation to the value of a consignment of drugs is the profit which will emanate from the dealings in it. When one gets to the quantity of two and two thirds kilos, other than as an indication of profit, the actual saleable value is in itself of little importance. It is suggested here that the applicant was a courier. There is no direct evidence as to that. A courier's gain for himself would be a matter for consideration.

7. The matter which concerns us is the mis-information which was given to the trial judge, inadvertent though that may have been. The applicant must be under the impression that this did, because the judge himself asked to be informed of it, play a part in the sentencing process. It now appears that the true value is very considerably less than the amount mentioned in open Court. We think that the public perception of an apparent injsutice should be recognised by a reduction in sentence and for that reason and that reason only, we would set aside the sentence of 12 years' imprisonment and substitute for it one of 10 years. We, therefore, grant leave, treat the hearing as the hearing of the appeal and allow the appeal to the extent indicated.

Representation:

John Hemmings, Esq. (D.L.A.) for Applicant on sentence Applicant - in person on conviction

J. Abbott, Esq. for Crown/Respondent