The Queen v. Lau Yiu Nam

CACC000520/1985

[Tariff for possession of opium for the purposes of unlawful trafficking.]

BETWEEN:

Coram: Roberts, C.J., Kempster, J.A. & Power, J.

Date: 25 April 1986

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J U D G M E N T

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Roberts, C.J. –

1. The applicant seeks leave to appeal against sentences of 15 months' imprisonment for possession of opium for the purposes of unlawful trafficking; of 3 years' imprisonment on each of two charges of trafficking in opium; and of 1 month's imprisonment each on charges of possession of Part I Poisons and of possession of an opium pipe.

2. The total of these sentences was three years and two months, those for possession and trafficking being concurrent, the other two being consecutive.

3. The applicant is an old man, according to the records nearly 74, though he claims that a family bible which he saw in China recently suggests that he is a decade older. Without more than this assertion, we feel obliged to take the lower age which does not, of itself, carry much weight as a mitigating factor where drug trafficking is concerned.

4. The applicant has several previous convictions, most of them related to drugs, either possession of them, possession of apparatus used in drug taking or of keeping a divan, though he has not been previously convicted of possession for the purposes of trafficking or of trafficking itself.

5. We have been provided with information, of a public nature and readily available, which shows that seizures of raw and prepared opium in Hong Kong in recent years have amounted to 83 kilogrammes in 1980, rising to 179 kilogrammes in 1982 and coming down to 99 kilogrammes in 1985. It appears that the great majority of current opium addicts in Hong Kong is composed of old Chinese men. The number of them is estimated to be only 3% of the total of 50,000 addicts, that is to say about 1,500.

6. We have examined a number of cases in which sentences have been imposed in the past for the possession of opium for the purposes of trafficking.

7. In Au Wai v.R.¹ a sentence of two and a half years was reduced to one of fifteen months, the defendant, aged 70, having been found in possession of 478 grammes of prepared opium and opium dross.

8. In CHEUNG Sum-kok² where the defendant was found in possession of 2,337 grammes of prepared opium, a sentence of three and a half years' was reduced to two and a half years.

9. In TANG So v. R.³ a 1973 criminal appeal, a sentence of 18 months was reduced to 9 for possession of 227 grammes of opium.

10. In YUEN Ping v. R.⁴ a sentence of four years for possession of 149.6 grammes of prepared opium was reduced to two years. This seems to be above the normal tariff suggested by the other cases and may, perhaps, have been aggravated by the fact that the defendant in that case was caught at Kai Tak bringing the drugs into the territory.

11. In the Attorney Geralen v. TSE Ming-muk⁵, this court expressed the view that a custodial sentence of six to twelve months was proper for possession of 947 grammes of prepared opium.

12. On the basis of recent Hong Kong experience, with the use of opium declining, there are no grounds on which the accepted tariff of sentences as applied in the past should be altered.

13. In CHEUNG Sum-kok² a sentence of 2½ years was imposed for possession of 2,337 grammes. Taking this as a guideline, there is nothing wrong with a total sentence of about three years' for the possession and trafficking charges being taken together since they involve 3,293.2 grammes.

14. It may be of assistance to magistrates for us to suggest that they should consider for the offence of possession of raw or prepared opium imposing sentences on the following scale –

Over 500 grammes - 6-12 months

Over 1,000 grammes - 12 months - 2 years

Over 2,000 grammes - 2-3 years

Over 3,000 grammes - 3 years upwards.

15. Below 500 grammes, the matter should be regarded as wholly within the discretion of the magistrate.

16. The application for leave to appeal against sentence is refused.

1 Criminal Appeal No. 296/79

2 Criminal App. 809/77

3 1973 Crim. App.

4 Crim. App. 940.81

5 Application for Review No. 14 of 1974

Representation:

Appellant LAU Yiu-nam - in person

Mr. G.J.X. McCoy, Senior Crown Counsel, for Respondent/Crown Prosecutor