Wong Hing v. The Queen

CACC000485/1977

Coram: Morley-John, J.

Date of Judgment: 27th May, 1977.

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JUDGMENT

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1. The appellant was found guilty of the offence of trafficking in dangerous drugs and was sentenced to a term of 2 ½ years imprisonment. It is against this sentence that he now appealed and the ground of his appeal is that the sentence imposed was too severe.

2. From the learned magistrate's Statement of Findings it would appear that on the 27th November, 1976 a police office on duty in a resettlement estate observed a Chinese male approach the appellant. The man was observed to give the appellant $20 whereupon the appellant took a packet from his pocket and from this packet gave something to the other man. The police officer approached the appellant and as a result of a search found a cigarette packet containing three packets each packets containing 0.1 of a gramme of heroin and $20. The purchaser made good his escape. There is no reference in the learned magistrate's Statement of Findings what evidence was given by the appellant but after having been found guilty the appellant merely asked for leniency.

3. In sentencing the appellant the learned magistrate noted that the appellant was 76 years of age. The learned magistrate also commented on the fact that the appellant had 59 previous convictions consisting mainly of drug offences. Reference to the criminal record of the appellant shows that it would appear that he was an opium addict from about 1958. 46 of his previous offences were connected with opium and for which he was fined relatively small amounts. Although some of his offences have been recorded merely as possession of dangerous drugs there is no recorded offence of possession of salts of esters of morphine until 1976. The learned magistrate also stated "the selling of dangerous drugs is a very serious offence and as has been said many times in the courts here must, regardless of the age of the person involved, carry a deterrent sentence." A sentiment which I have frequently expressed myself. However thanks to counsel for the Crown certain facts were put before me which if they had been before the learned magistrate may well have inclined him to impose a more lenient sentence. The packets found in the appellant's possession were very small packets and three in number. If as was found he sold one packet to this unknown man then originally he had in his possession four packets each containing 0.1 of a gramme of heroin. The appellant was peddling these drugs right outside the front door of his home. His home was afterward searched and no more packets of drugs were found. Also there was no evidence that the appellant was selling drugs on behalf of someone else.

4. There have been occasions when sentencing what have been described as small cogs in the wheel of a drug syndicate, when I have voiced the sentiment that without such small cogs the syndicate could not operate and therefore little regard can be given to the age or sex of an accused person. However, in this case there is no question of the appellant working for a syndicate. He is 76 years of age. He lives with his wife and grand children and as Crown Counsel has informed me he is well looked after. The appellant has been in custody since 27th November 1976. I consider this a very special case and have decided to allow this appeal to the extent that the sentence of 2 ½ years imprisonment been substituted by one of 1 year imprisonment. The appellant pleaded not guilty on 2nd December. 1976, and therefore in accordance with the decision in the case of Chu Chun-sing v. The Queen 1976 H.K.L.R.678 such term of imprisonment shall be treated as being reduced by the period he has been in custody since the date of his original plea. As I say I consider that this is a special case and in no way changes my views that trafficking in dangerous drugs is a very serious offence and I have warned this appellant of the very dire consequences if he repeats this type of offence.

Representation:

Appellant in person

Mr. G.W. Alderdice for Crown/Respondent