The Queen v. Lee Yiu Wai and Another

1987 No. 614
(Criminal)

IN THE COURT OF APPEAL

BETWEEN

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Coram : Hon. Chief Justice, Hon. Power and Hon. Barnes, J.J.

Date of hearing : 27th March 1987

Date of delivery of judgment : 27th March 1987

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J U D G M E N T

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Power, J.

1. Each of the applicants pleaded guilty to a count of possession of dangerous drugs for the purpose of unlawful trafficking. The amount involved was 994.45 grammes or a mixture containing 90.73 grammes of salts of esters of morphine and the offence occurred on the 25th of June at Room 2, Flat 21, Man Ying Building, Kowloon. The 1st applicant also pleaded guilty to simple possession of an amount of 29 tablets and 5 tablet fragments containing 12.3 grammes of methaqualone.

2. The 1st applicant was sentenced to imprisonment for 6 years on the first charge and for 9 months concurrent on the second charge and the 2nd applicant was sentenced to imprisonment for 6 years on the first charge. Before sentencing, the trial judge obtained Probation and Drug Addiction Treatment Centre reports and Mr Justice Kempster, when determining what part of the record was necessary for this hearing, ordered that Detention Centre and Training Centre reports be furnished.

3. The facts are simple. The police carried out a raid on premises upon which the 2 applicants were found. The police searched those premises and found the drugs, whereupon both applicants admitted possession and, as regards the larger quantity, the intention to traffic therein. Appeals are now brought upon the basis that the sentences were excessive and wrong in principle. It is urged with regard to the 1st applicant that he is only 20 years of age, that he has a clear record, that he was forced into committing the offences because he had to get money to pay “loan sharks”, that he gave information which led to the arrest of another drug dealer, that he pleaded guilty and that the Training Centre report, which we now have before us, shows that he is suitable for a Training Centre.

4. The first count involved almost 1 kg of dangerous drugs. It was a grave offence which, given the guidelines set out in Chan Chi-ming(1), might have attracted a sentence of 8 years. We take into account the relative youth of the 1st applicant but are not persuaded that any form of detention other than imprisonment for a substantial period would be appropriate in his case. 

5. We have listened with care to the arguments that had been pressed upon us by Mr Whitehead but neither his arguments, nor the authorities quoted by him, move us in this regard. The community interest demands that every form of deterrence be brought to bear in an attempt to stamp out this vile trade and little credit, because of age, can be given to a 20 year old who deliberately involves himself in this traffic. An offence involving this amount calls for a sentence calculated upon the basis of 8 years before taking into account any credit to be given for a plea of guilty or because of other mitigating factors.

6. Mr Whitehead accepts 8 years as the proper starting point but argues that the sentence of 6 years that was passed was inappropriate because it failed to give sufficient credit to the plea of guilty, to the assistance which the applicant gave to the police and to his clear record. It must be said immediately that little weight can be given, when dealing with offences of this nature, to the fact that a person has a clear record. The applicant is, of course, entitled to have credit given for his plea of guilty and for the assistance which he gave the police. We are satisfied that adequate credit was given in these regards when the sentence of 6 years was imposed. The application of the 1st accused is refused.

7. The 2nd applicant is in quite a different category. He was just over 16 at the time of the commission of the offence. While fully understanding the reasons which impelled the judge to pass the sentence he did, we are satisfied, given his age, and accepting that he was only recently involved in trafficking in dangerous drugs, that a sentence of imprisonment should be passed only as a last report. The trial judge obtained only Probation and Drug Addiction Treatment Centre reports. The former stated that this applicant was not considered a suitable subject for probation. The latter said that he was a drug addict and considered him suitable for a treatment centre. The trial judge, influenced no doubt by the quantity of drugs involved, considered that an immediate and substantial custodial sentence was called for.

8. We have the benefit of Detention and Training Centre reports, which were not before the judge. They state, however, that he is not suitable for either centre because of his addiction.  While we are satisfied that the trial judge was right in refusing to send the applicant to a Treatment Centre, we consider, bearing in mind that he has now been in custody for 4 months, that he must, at least, have passed through the initial stages of withdrawal and are satisfied, despite the adverse Training Centre report, that it is a proper case to take advantage of the power given us by 8.4 of the Training Centre report and order that the sentence of 6 years be quashed and substitute therefor an order that the 2nd applicant be detained in a training centre. We treat hearing of the application as the hearing of the appeal and order accordingly.

Mr McWalters (Crown Prosecutor) for the Respondent

Mr Robert Whitehead (D.L.A.) for Both Applicants

(1)  [1979] H.K.L.R. 491