The Queen v. Chan Suk Ling

CACC000501/1989

BETWEEN

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Coram: Yang, C.J., Silke, V.-P. & Macdougall, J.A.

Dates of Hearing: 23 March and 12 June 1990

Date of Judgment: 28 September 1990

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Chan Suk Ling was convicted by Deputy Judge Bokhary (as she then was) in the District Court on a charge of being in possession of dangerous drugs namely 10.64 grammes of a mixture containing 9.96 grammes of salts of esters of morphine - this for the purpose of unlawful trafficking. On 23rd March 1990 her application for leave to appeal against that conviction was refused. The matter of an application for leave to appeal against the sentence imposed on her of 5 years imprisonment was adjourned because of consideration which was to be given to the general tariffs in dangerous drugs cases by a differently constituted Division shortly afterwards and which might affect her application. That was done in R. v. Lau Tak Ming, consolidated appeals 230/89: 269/89 (unreported) the judgment being delivered on 29th May 1990.

2. On 12th June 1990 the application in respect of sentence was resumed and heard and our decision was reserved.

3. The date of the commission of the offence was l0th July 1989. The significance of that date is that it is subsequent to the delivery of the judgment, on 14th April 1989, in The Queen v. Cheng Yeung [1989] 2 HKLR 258. That decision was considered in Lau Tak Ming. The decision in Cneng Yeung approved the notional conversion method, that is the conversion of a mixture of No.4 heroin into a mixture of No.3 and the application to the resulting quantity of the guidelines in The Queen v. Chan Chi Ming [1979] HKLR 491. Here the conversion resulted in 212 grammes of No.3 heroin which falls within the third category guideline in Chan Chi Ming: "substantial (150 to 1,000 grammes)", the sentencing range being from 5 to 8 years.

4. In passing the sentence she did Deputy Judge Bokhary took into consideration this conversion and noted that the applicant had two previous convictions, both drug related. On 9th March 1989 the applicant had been convicted of two offences: (1) possession of a dangerous drug and (2) possession of apparatus fit and intended for the injecting of a dangerous drugs. On each of those charges she had been sentenced to 4 months' imprisonment concurrent but suspended for a period of two years. This present offence having taken place during the currency of the suspended sentence, the sentencing judge in her discretion thought it proper that the 4 months sentence should be activated and that it run consecutively to the 5 years she imposed, being a sentence at the bottom of the "substantial" Chan Chi Wing scale, for this instant offence.

5. The issue raised is that: if sentence had been passed in accordance with the tariffs set out in Lau Tak Ming the appropriate guideline would have been the first range therein mentioned, based on the content of the narcotic, 9.96 grammes, "up to 10 grammes of narcotic: 2 to 5 years' imprisonment". It is suggested that an injustice has been occasioned to the applicant.

6. The Courts, once notional conversion is applied, cannot ignore the resulting saleable mixture. Equally the Courts are now aware that No.4 heroin itself is generally on sale and in use by addicts in Hong Kong. At the time of the commission of this offence, in July 1989, this change was only starting to occur there being then minor seizures of a substance somewhat less than the full No.4 purity but greater than the adulterated No.3 purity. From then on seizures of No.4 heroin started to increase appreciably.

7. Proper sentencing process involves reference to the practice and guidelines, if any, prevailing at the time when the offence is committed.

8. We take the view that the sentence imposed here of 5 years, at the lower end of the "substantial" range, applying Chan Chi Ming to the converted quantity, was, in all the circumstances of this offence, not one which warrants our interference.

9. We see no reason to interfere with the exercise of the judge's discretion in activating the previously imposed suspended sentence of 4 months concurrent. The application is dismissed.

Representation:

Applicant - in person

A.E. Schapel, Esq. for Crown/Respondent