Tongbai Mitwongsa and Another v. The Queen

CACC000550/1982

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang and Barker JJ.A.

Date: 3 November 1982

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JUDGMENT

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Yang J.A.:

1. Tongbai Mitwongsa (42) and Tasaneeporn Mitwongsa (24) are husband and wife. On the 29th November 1981 they flew in from Bangkok and were arrested at Hong Kong Airport by the police who acted on information. After a search which revealed nothing incriminating, both husband and wife were taken to Queen Elizabeth Hospital.  The reason for their being taken to hospital was that the police suspected them to have dangerous drug's concealed inside their bodies. After having been given medication, the wife excreted three condoms in which were concealed 181.48 grammes of a mixture containing 154.97 grammes of esters of morphine. A little later the husband, also after medication, excreted five condoms in which were concealed 294.27 grammes of a mixture containing 268.91 grammes of a similar drug.

2. Having convicted them of trafficking, the trial judge imposed a sentence of 14 years' imprisonment on the husband and one of 7 years' imprisonment on the wife.

3. It is argued before us that the facts do not disclose anything extraordinary - for there was nothing unusual about the way the two accused brought the drugs into Hong Kong. We have also been referred to a number of authorities to show that that the sentences imposed in this case went outside the tariff or range of sentences usually imposed for this type of offences.

4. It is true that the tariff for possession for the purpose of unlawful trafficking in salts of esters of morphine is five to eight years if the quantity is between 150 to 1,000 grammes. On the other hand, the cases that come within the suggested tariff were not cases of trafficking or importation but mainly cases of possession for the purpose of unlawful trafficking.

5. The Judge in his Reasons for Sentence stated quite clearly that offences of this type must be treated as extremely serious offences, and very heavy penalties must be expected. He took into consideration the fact that the wife is a much younger person than her husband and that in all probability she was under his influence.

6. Having looked at a number of cases which have been referred to us, we are of the view that the sentences imposed are unduly heavy. We have not been referred to any tariff for cases of importation, but nevertheless having regard to the circumstances of this case and the way in which the drugs were smuggled, as it were, into the Colony we have no doubt that a deterrent sentence must be imposed. Nevertheless we are of the view that 14 years for the quantity involved, large though it is, is excessive. We therefore allow the appeal of the 1st Appellant and reduce the sentence from 14 years to 10 years. We allow the application of the wife and treat the application as an appeal and reduce her sentence from seven years to five years.

Representation:

Mr. Mackenzie-Ross (D.L.A.) for Appellants.

Miss Crabtree for, Crown/Respondent.