The Queen v. Wong Chi Kin

IN THE COURT OF APPEAL

1986 No. 432
(Criminal)

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BETWEEN

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Coram :  Hon. Roberts, C.J., Hon. Silke, J.A., Hon. Garcia, J.

Date :  19^th March 1987

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J U D G M E N T

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Garcia, J.:

1. The applicant was charged with seven counts of trafficking in dangerous drugs contrary to section 4 of the Dangerous Drugs Ordinance, and three counts of possession of a dangerous drug for the purpose of unlawful trafficking therein, contrary to section 7(1) of the same Ordinance.

2. He pleaded not guilty to the charges but after trial was unanimously convicted by a jury on 20th August, 1986, of all the offences and sentenced to concurrent terms of 9 years' imprisonment on each of the said charges.

3. He now seeks leave to appeal against sentence only.

4. On the 25th and 26th day of April, 1986, the applicant was kept under observation by 2 police officers, besides which his activities on both days were recorded on video tape. He was observed near No. 49 Spring Garden Lane which houses the New Ocean Fast Food Shop. Outside the shop is a signboard, to which the applicant was seen to go from time to time and to take out some packets, which he exchanged for money with various men in the vicinity of the shop. The money received was in $10 notes.

5. Two of these men gave evidence to the effect that the packets they bought were dangerous drug for which they paid the applicant $50 for each packet. The quantities of dangerous drugs contained in the packets sold by the applicant were not specified in the charges but, after his arrest on 26th April, the dangerous drugs set out in counts 8, 9 and 10 of the indictment, that is, 1.49 grammes of a mixture containing 0.16 gramme of salts of esters of morphine, 4.45 grammes of a mixture containing 0.53 gramme of salts of esters of morphine, and 5.81 grammes of a mixture containing 0.54 gramme of salts of esters of morphine, were respectively found (i) behind the signboard, (ii) behind some stools stacked against the wall inside the fast food shop - a place in which the applicant had his meals and used the toilet facilities, and (iii) from a room in Flat C on the 1st floor of 63 Wanchai Road, where he lived.

6. The applicant has three previous convictions involving dangerous drugs, one in 1978 for possession of dangerous drugs for the purpose of unlawful trafficking, for which he was sentenced to 18 months' imprisonment, and the second and third for possession of dangerous drugs in 1980 and 1981, for which offences he was imprisoned for 1 year and 9 months respectively. 

7. In sentencing the applicant, the trial Judge took into account the applicant's previous convictions for similar offences, the fact that he is suffering from a heart ailment and is being treated for that condition and that he was selling dangerous drugs but was not a big fish in the business.

8. The trial Judge was asked by the applicant's Counsel to apply the guidelines of the Chan Chi Ming case in sentencing the applicant, having regard to the small quantities of dangerous drugs involved in the charges. He declined to do so, distinguishing the facts of that case from the present in that the applicant was convicted of the actual selling of dangerous drugs and not only for possession for the purpose of unlawful trafficking. The offence of possession of dangerous drugs for the purpose of unlawful trafficking may take many forms which cannot be specified in the charge, i.e. for sale, for export, for packing, for delivery to buyers, for transportation within the territory from one place to another, from manufacturer to packer or delivery to street seller.

9. Some of these activities involve large quantities of drugs and some small and the basis upon which the tariffs in the Chan Chi Ming case have been proposed take into account the varying quantities of dangerous drugs involved in the offence of possession for unlawful trafficking.  The trial judge was not referred to the case of The Queen vs. Yeung Ying-kan and Lam Chuen, C.A. No. 120 of 1984, to which our attention was drawn. This was a case in which the facts are almost on all fours with the present and both defendants pleaded guilty to the offence of trafficking in dangerous drugs and were sentenced to four years' and five years' imprisonment respectively. In considering their appeal against sentence, Silke, J.A. stated in the course of his judgment:-

“Trafficking, on the other hand, is the end result of the activities of the storekeeper or courier and it is even more serious than possession for the purpose of unlawful trafficking. It cannot be right, in our view, that the quantity found can be the only criterion upon which sentence is based even though the maximum sentence provided by the legislation is the same for each offence. It is undoubtedly a relevant factor for the consideration of a sentencing judge but the overall consideration must be the actual selling of these drugs to the public. The internal scale within the maximum permitted must be graduated to the nature of the offence charged. We do not therefore think that the tariffs of Chan Chi Ming are applicable where the charge is that of direct trafficking……….  These were quite deliberate offences of a very serious nature. We doubt if we would have intervened had the sentence on each been that of six years in the circumstances here.”

10. We have been invited to equate the sentences which have been imposed on the applicant with those which are usually imposed for manufacturing dangerous drugs.  We decline to do so as the characters of the offences are quite different and the scale of dangerous drugs involved in the latter offence is invariably large.

11. In view of what has been said in the Yeung Ying Kan case, we are of the opinion that the sentences imposed on the applicant to be manifestly excessive and we grant his application. His appeal against sentence is accordingly allowed and we substitute a sentence of six years' imprisonment in respect of each of the charges, to be served concurrently.

Mr I.G. Cross and Mr C.K. Wong for Crown

Mr Ian Payne (D.L.A.) for Appellant