The Queen v. Ng Kam Sum
Read the full judgment text of CACC 520/1986 on BabelCite. This Court of Appeal judgment.
1. The applicant was convicted on two charges of possession of dangerous drugs for the purpose of unlawful trafficking. The first related to an incident on the 23 rd June 1986 at the Royal Hong Kong Jockey Club premises at Kiu Kiang Street, Shamshuipo, the second to an offence on the same day at premises at 170 Kiu Kiang Street.
|
1986, No. 520 IN THE COURT OF APPEAL BETWEEN
----------------------------- Coram: Hon. Roberts, C.J., Hon. Fuad, J.A. and Hon. Power, J. Date of hearing: 15th April 1987 Date of delivery of judgment : 15th April 1987 ----------------------------- JUDGMENT ----------------------------- Power, J. 1. The applicant was convicted on two charges of possession of dangerous drugs for the purpose of unlawful trafficking. The first related to an incident on the 23rd June 1986 at the Royal Hong Kong Jockey Club premises at Kiu Kiang Street, Shamshuipo, the second to an offence on the same day at premises at 170 Kiu Kiang Street. 2. In the first charge, the applicant was said to have been found with 8.71 grammes of a mixture containing morphine and in the second, to have had possession of 41.62 grammes of a mixture containing morphine. He pleaded guilty to the first charge and was found guilty after trial of the second charge. 3. The facts were routine facts in cases of this type. He was kept under surveillance; he was stopped after entering the Jockey Club and searched; the drugs were found conealed in this underpants; keys were seized from his and he led the police back to premises which the keys were found to fit; the drugs, the subject of the second charge, were found in those premises. 4. The trial judge, when sentencing him, said: “Despite his appalling criminal record, I still felt he was entitled to some benefit for his plea of guilty to the first charge and, bearing this in mind and in particular the small quantity of dangerous drugs, I sentence him to two years imprisonment. In respect of the second charge, I shall give him no credit for any plea of guilty and consider that, in view of the amount of drugs and his previous conviction for offences of a similar nature, he was a man who was an unrepentant trafficker. I will sentence him to 5 years imprisonment on the second charge and order the sentences to be served concurrently.” 5. It is urged by Mr Grounds, who appears for the applicant, that the totality of the sentences, 5 years, was manifestly excessive. He agrees that the sentences should be concurrent, as there was really only one transaction, but points out that the total amount of drugs involved, i.e. just over 50 grammes, was at the lower end of the 30-150 grammes band referred to in Chan Chi-ming[1], which would attract a sentence from 3-5 years. He submits that, when the totality is looked at, this case comes at the lower end of that band and that the maximum sentence to be imposed should have been not more than 4 years. 6. He asks the Court to look at the reasons given by the trial judge when sentencing. He submits that the trial judge had increased the sentence because the applicant had an appalling criminal record, which included 2 offences of possession for unlawful trafficking and one offence of trafficking. Mr Grounds points to the passage in Thomas on “Principles of Sentencing” which states that the facts of the offence itself should govern the level of sentence and that matters such as previous record should only be taken into account when considering whether there should be any reduction because of individual circumstance of the defendant. 7. As we have said before, Chan Chi-ming is not a strait-jacket. It indicates bands of sentences which the Court thought appropriate in dangerous drugs cases. Mr Cross, for the Crown, points out that the Court, having indicated these guidelines said: “Abad criminal record, and particularly one in which previous drug offences appear, will be a factor which the court should take into account, and would usually result in a higher sentence than in the case of a man with a clear record”. 8. The court also said:
9. We are satisfied that, when fixing the level of sentence in trafficking cases, it is proper for the judge to take into consideration in fact, if the offender’s record reveals it, that he is a regular trader in drugs, though this would not justify a sentence in excess of the appropriate maximum for the offence itself. 10. The applicant has a bad record and the judge was justified in his view that he was an “unrepentant trafficker”. Given these facts, we are quite satisfied that there is nothing that calls for interference by this Court. The application is therefore dismissed. Mr I.G. Cross (Crown Prosecutor) for Respondent Mr Christopher Grounds (M/s C.K. Mok & Co) for the Applicant [1] [1979] H.K.L.R. 491 |