The Queen v. John William Weerth and Another

CACC000491/1988

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Coram: Hon. Silk, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 31 May 1989

Date of Judgment: 31 May 1989

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J U D G M E N T

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Power, J. A.:

1. The applicant pleaded guilty to two of trafficking in a dangerous drug. The charges were firstly that  he did on 13th July 1988 at Room 702 Mariners' Club, Middle Road, Tsimshatsui traffick in a dangerous drug namely 30.1 grammes of a resinous substance containing 1.82 grammes of tetrahydrocannabinol. The 2nd charge was that he did, together with one Ruchel Yurchak on 14th July the following day inside the Blacksmith's Arms's Bar at 16 Minden Avenue, Tsimshatsui, unlawfully traffick in a dangerous drug namely, 1,961.74 grammes of the same substance. He was sentenced to one month's imprisonment on the first charge and two and a half years' imprisonment, to be served concurrently, on the second charge. He now seek leave to appeal against those sentences.

2. The facts are that at about 9.40p.m. on 13th July, P.W.1, an undercover police officer, went into the Schnurrbart Bar at 6 Ashley Road and was introduced to the applicant by another male. He then followed the applicant, after some conversation, to the room in the Mariners' Club where a packet which contained the suspected dangerous drugs was produced and handed to the undercover officer who in turn gave him $1,050. Arrangements were made before the two parted for them to meet on the next day. After negotiations earlier in that day, the two met at about 6 o'clock inside the Blacksmith's Arm's Bar. At about 7 o'clock the applicant, having gone away, returned to the bar with a plastic bag. A short while after the 2nd defendant entered the bar carrying a plastic bag and after a short chat with the applicant, handed over the plastic bag to the applicant who then took a smaller bag from it and then handed two bags to the undercover police officer. The applicant was arrested at 7.25p.m. and the charges which he now faces followed upon that arrest.

3. The trial judge arrived at a starting point for sentence of 4 years. He stated that he considered the appropriate way of arriving at a figure for sentence in a trafficking case was to apply a multiplier, he thought that a figure of 3 or 4 would be appropriate, to the figure for the same quantity of dangerous drug prescribed by the tariff in Chan Chi Man's case which, of course, deals with the offence of possession of a dangerous drug for the purpose of unlawful trafficking. It is complained that this approach is wrong in principle. It was also alleged that the trial judge failed to give sufficient discount to the applicant's plea of guilty, his co-operation with the Crown and to other mitigating factors.

4. The trial judge when sentencing took into account the plea of guilty and an offer to assist the prosecution. He bore in mind that trafficking merits a more severe sentence than the offence of possession for the purpose of unlawful trafficking. He was, however, unable to find any guidance from the authorities as to the extent to which this should be reflected in sentence. He said, at p.5 of his Reasons:

"I think that, looking at the cases which have been referred to me viz., Chan Chi-man [1987] HKLR 221 and SIN Shing-cheong [1987] HKLR 1123, the appropriate approach would be to consider what would have been a sentence for simple possession for the purpose of unlawful trafficking, and increase that by a factor of three or four."

5. He went on to indicate that having done this exercise he arrived at a sentence of four years. His approach appears to have been to take the tariff set out in Chan Chi Man, which indicates that, when the amount involved is between 1,000 and 2,000 grammes, the appropriate sentences is from 8 to 16 months. Having taken these figures he appears to have, quite properly, regarded the amount as being at the top of the range and to have applied a factor of three to the top of the range figure of 16 months thus producing a sentence of four years.

6. We accept that the tarrif set out in Chan Chi Man's case does provide a useful starting point when sentencing for the offence of trafficking but it must be emphasized that trafficking is, in almost every case, a more serious offence than that of possession for the purpose of unlawfully trafficking. We cannot, however, accept the factor of three or four to have been appropriate.

7. In each case of trafficking the circusmtances must be carefully examined. The sentence must be made more severe in accordance with the extent of involvement of particular defendant in the trafficking. Involvement can range from that of a person who does no more than pass the must the drugs to another person to that of a person who has planned and controlled, indeed masterminded, the whole transaction. The involvement of the applicant was set out by the trial judge as follows:

"I accept what I have been told as to how he got involved in this matter through introductions of other persons whose names have emerged in the evidence, I feel bound to say on the evidence I have heard, that he did play a dominant role in these particular transactions with an undercover officer on the Narcotics Bureau."

On that finding which, in our view was a proper one, the applicant played a dominant role in this transction. We are satisfied that had he been charged with possession for the purpose of unlawful trafficking the appropriate sentence, if he had entered a plea of guilty, would have been one of twelve months. We are satisfied that, in the present case, taking into account the plea of guilty, the co-operation with the police, the clear record and the age of the applicant, a sentence of twenty months would have been an appropriate one.

8. We emphasize that we have not applied a multiplier of 1.66 or indeed any multiplier. We have, bearing in mind the tarrif, arrived at what we consider to be the appropriate sentence in the circumstances of this case.

9. The application for leave to appeal will be allowed. The hearing of the application will be treated as the hearing of the appeal. The sentence imposed on the second charge will be quashed and substituted therefor will be a sentence of twenty months. It is ordered to be concurrent with the sentence imposed on the first charge which will stand.

Representation:

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent.

Mr. G.J.X. McCoy (M/s Lee & Chow) assigned by D.L.A. for D1.

D2 in person.