The Queen v. Yim Tak Shing

IN THE COURT OF APPEAL

1986, No. 578
(Criminal)

BETWEEN

THE. QUEEN

and

YIM TAK SHING
LAW MEI LING

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Coram: Roberts, C. J., Fuad, J.A. & Power, J.

Date of Hearing : 14th April 1987

Date of Judgment : 14th April 1987

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JUDGMENT

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Fuad, J .A.:

1. We dismissed the 1st Applicant's application for leave to appeal against conviction. We now deal with applications by the Applicants in relation to the sentences imposed upon them.

2. They were each convicted of the possession of dangerous drugs for the purposes of unlawful trafficking, consisting of 126.72 grammes of a mixture containing 16.68 grammes of salts or esters of morphine, packed in 24 polythene bags (1st Charge) and of the possession of apparatus fit and intended for smoking a dangerous drug, namely a piece of tinfoil, a match-box cover, a phial and one cigarette which all contained traces of salts of esters of morphine (2~d Charge).

3. The 1st Applicant, a man aged 29, was sentenced to 5 years' imprisonment on the first charge, and a fine of $1,000 was imposed upon him in respect of the second. He has a record. He was convicted in 1979 of a drug related offence and in 1974 he had been convicted of robbery. Again, in 1982, he was convicted on three counts of robbery and other offences and sentenced to a total of 6 years' imprisonment.

4. The sentences imposed on him were, in our view, entirely proper and his application for leave to appeal against them is dismissed.

5. The 2nd Applicant is a young woman now aged 24 and she was sentenced to 3 years' imprisonment on the first charge and cautioned on the second. The Deputy Judge noted that she had a clear record, her youth and the fact that she had been pregnant for some five months at the time the offence was committed. He added: "I took the view that she was under the influence of her boy friend, the 1st Defendant and had only a secondary role in this incident."

6. A very helpful probation report tells us quite a lot about this young woman. In 1984, she married a man by whom she had had two sons. Her husband and her children are now living in Scotland. Her husband used to send her various sums of money each month, but only on an intermittent basis. She was working as a dance hostess when she met the 1st Applicant and it was accepted that she was pregnant by him.

7. On the night the offence was committee, she came home and saw the police about to enter the flat where she lived with the lst Applicant. She took fright and went away from the building in a taxi. After the taxi had gone some distance, she thought better of what she was doing and gave herself up to a police officer in the street.

8. We have learnt that she recently gave birth to a little boy.

9. The Deputy Judge had a difficult task to perform in deciding the appropriate sentence for a woman in her position. While it is plain that he took all the relevant factors into account, we consider that he did not allow a sufficient disparity between the sentence he imposed on the 1st Applicant and the sentence imposed on her.

10. There was no evidence that she was in any way connected with the drugs operation that must have been going on, apart from the fact that she lived with the man whose child she bore.

11. We feel able to take a merciful view in her case, particularly in view of the fact that she has recently given birth to a baby. We think that the appropriate sentence would be one of 18 months' imprisonment. We a1low the application, treat it as the hearing of her appeal against sentence, and reduce the sentence accordingly on the first charge.

1st Applicant in person.

Mr. J. McLanachan (D.L.A.) for the 2nd Applicant

Mr. A.A. Bruce for the Crown/Respondent.