The Queen v. Inayat Hussain

CACC000473/1985

BETWEEN

Coram: Cons, V.-P., Penlington & Macdougall, JJ.

Date of hearing: 2nd April 1986

Date of judgment: 2nd April 1986

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. The Applicant today was convicted of offering to traffic in dangerous drugs, in that he offered to sell cannabis resin at $17,000 per kilogram without realising that his supposed customer was an undercover agent of the Narcotics Bureau. The Applicant was arrested when he and one of his colleagues went to collect the merchandise for delivery, i. e. "1982 grammes of a resinous substance containing 135.2 grammes of tetrahydrocannabinol".

2. The Applicant originally lodged an application for leave to appeal against conviction, but that has been withdrawn through his counsel this morning. We are concerned now only with his application for leave to appeal against the sentence of four years which was passed upon him for the drug offence and a sentence of four months for assault occasioning actual bodily harm, suspended earlier, but activated by the judge on this occasion.

3. Mr. Plowman, who appears for the Applicant, has put forward his. submission under four heads. The first concerns the role that the Applicant played in the particular transaction. It would seem that there were three persons in "the partnership", if we may call it that, which was selling to the undercover inspector. The exact position of the Applicant in the partnership, or his relationship to the other two partners, is not clear, but the Crown does concede that he was, comparatively speaking, a junior partner.

4. The second head is said to be the unfortunate family background. We mean no disrespect to Mr. Plowman when we suggest that in reality this boils down to nothing more than that the Applicant came from Pakistan at the age of 15 and has not adjusted to life in Hong Kong. Home conditions are admittedly not good. His father's work has not allowed him to give much time to his son. The accommodation shared with his father, when he is there, and his two elder brothers is cramped. Money is short. These however, with respect, are not uncommon features of Hong Kong life.

5. Thirdly it is said that the Applicant is young. That is so. At the time of the offence he was still only twenty, an age which is to some extent protected by the law with regard to sentencing.

6. Finally there is the question of what is, if any, the general level of sentences for offences involving cannabis. In his Reasons for Sentence the judge referred to three authorities. The first is the well known case of R. v. Chan Chi Ming ⁽¹⁾which gave guidelines in regard to the possession of dangerous drugs for the purpose of trafficking. These however relate only to what are commonly called "hard drugs". These do not for example include raw opium, and in R. v. Li Kwong Keung ⁽²⁾the second case referred to by the judge, this Court suggested that cannabis offences should attract lesser sentences even than for that. On the other hand, the third authority, R. v. Yeung Ying Kan ⁽³⁾ indicates that offences of actual trafficking deserve greater punishment than possession for the purpose thereof. Mr. Plowman observes that that was a blatant example of  direct trafficking. With every respect to him the present instance does not seem to us to be any the less. We appreciate that in one sense the offer was "instigated", and that any resulting sale would not have been to the general public. However we have no reason to think that the actions of the persons concerned would have been any different had the customer in fact been genuine.

7. We have been referred all told to many cases concerning cannabis. It is not easy to discern from them any settled sentencing policy, which may perhaps be attributa in part to a lack of information as to the various forms in which the drug may be prepared, the differing characteristics of those forms and the extent of their use or availability in Hong Kong. It may be that when a suitable opportunity presents itself the Attorney General will put before the trial judge certain evidence which we understand he has to hand, and that in due course a wider review of sentencing policy can be conducted. For the moment however it is sufficient to observe that the sentence passed on the present Applicant appears in any event to be out of line. We have in mind particularly Applications for Review No. 7 of 1982⁽⁴⁾ and No. 7 of 1983⁽⁵⁾ which imposed respectively terms of 18 months for the possession of 700 grammes and 2?years for over 5 kilos. In the circumstances of the present case we have come to the conclusion that two years would be appropriate.

8. For these reasons the application is allowed, the hearing is treated as the appeal and the sentence for offering to traffic in dangerous drugs is reduced to one of two years.

(1)    [1979] H.K.L.R. 491

(2)    Cr. App. 206/82 unreported 30 June 1982

(3)    Cr. App. 120/84 unreported 30 May 1984

(4)    Attorney-General v. Cheung Wai Leung, unreported 29 September 1982

(5)    R. v. Tamang Nima, unreported 17 November 1983

Representation:

G. Plowman (M/s R.J. Oliver) for Applicant

P.J. Dykes, Crown Counsel for Respondent/D.P.P.