The Queen v. Lee Kin Yee

Case No.CACC 530/1989

Court

Court of Appeal

Date06 Feb 1990

Judge—

Case Document

100%Judiciary

CACC000530/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 530 OF 1989

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BETWEEN

THE QUEEN

Respondent

AND

LEE KIN YEE

Appellant

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Coram: Hon. Kempster, J.A. & Hon. Bewley, J. in Court

Date of hearing: 6 February 1990

Date of delivery of judgment: 6 February 1990

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JUDGMENT

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Bewley, J. (Giving the Judgment of the Court)

1. This is an application for leave to appeal against a sentence of 5 years imprisonment imposed by His Honour Judge Sharwood in the District Court for possession of dangerous drugs for the purpose of unlawful trafficking.

2. The facts of the case were that a police party raided a men's boarding house in Happy Valley at 6 a.m. They searched the applicant's bed space and found 28 sealed plastic bags containing a total of 169.98 grammes of heroin mixture. They also found 8 syringes and spoons with traces of dangerous drugs, 8 new syringes with needles and 40 plastic bags tied with a rubber band. The applicant told the police that the drugs were for his own consumption. In court he admitted possession but failed to rebut the presumption and was convicted of possession for the purpose of unlawful trafficking. He was also sentenced to 12 months imprisonment concurrent for possession of apparatus, to which charge he pleaded guilty.

3. The applicant is 39. He has 18 previous convictions including 5 for dangerous drugs offences between 1972 and 1985. He is clearly an addict who maintains his habit by selling drugs.

4. Grounds of appeal were filed, but Mr Hemmings does not rely on them. He urges, instead, that consideration be given to the fact that the applicant is himself an addict who sells drugs to support his habit, rather than a man who sells drugs solely for profit. Counsel concedes that the sentence of 5 years is in line with the tariff in Chan Chi Ming but urges firstly, that insufficient credit was given to his admission of possession; and secondly, that a lesser sentence should be imposed by reason of the fact that he is an addict.

5. We feel that the plea of guilty to simple possession should not attract any greater reduction in sentence than it did in this case, no remorse was shown and the amount of time saved was small. So far as the second point is concerned, the guidelines in Chan Chi Ming have been applied now for some years and we feel that it would be wrong for this court to complicate matters for sentencers by distinguishing addicts from non-addicts where substantial quantities are involved.

6. The sentencing of addicts who traffick in small amounts to support their habit is dealt with in Chan Chi Ming thus :

	" It is proper that, where very small quantities are involved, allowance should be made for the possibility that the accused may be an addict himself, selling on a small scale in order either to gain sufficient money to satisfy his own needs, or to be supplied with drugs for his own consumption in lieu of payment.
	In such circumstances, the allowance which can be made for his own addiction, with the suffering which it brings, is reflected in the range of two to two and a half years."

7. For these reasons we refuse this application.

	(E. de B. Bewley)
	Judge of the High Court

Representation:

Mr D.G. Saw, Senior Crown Counsel, for Respondent.

Mr John Hemmings, instructed by M/S. Kwan & for Applicant Kwan