Attorney General v. Chan King Wai
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HEADNOTE Sentence - accused only 17 years old - serious drug offence - s.109A of Cap. 221, Criminal Procedure Ordinance. IN THE COURT OF APPEAL 1987 No.11 BETWEEN ATTORNEY GENERAL AND CHAN KING-WAI Coram: Yang, Ag. C.J., Kempster & Power, JJ.A. Date: 11th June, 1987. ____________________ J U D G M E N T ____________________ Yang, Ag. C.J. - 1. On 26th March, this year, CHAN King-wai appeared before Judge Cameron and pleaded guilty to a charge of possession of dangerous drugs for the purpose of unlawful trafficking. The amount of drugs involved was 278.02 grammes of a mixture containing 35.30 grammes of salts of esters of morphine. 2. At the time of the offence the respondent was only 17 year-s of age. He had one similar previous conviction for which he was sent to a training centre. It should be noted that at the time of the offence he had been discharged from the training centre only a few months' before. 3. In a very careful judgment, the Judge dealt with the facts as well as the background of the respondent, having called for a probation officer's report as well as a training centre report. In his reasons for sentence, the Judge noted that the respondent was not a drug addict and, on the basis of the reports 'before him, he came to the view that a further period in a training centre might set the respondent “on the right road”. 4. He also observed -
5. We agree with this observation. 6. The Attorney General, in an application to this court for a review of sentence under section 81A of the Criminal Procedure Ordinance, seeks to have the sentence reviewed on the grounds that the sentence is wrong in principle and manifestly inadequate. 7. The Crown relies on the case of R. v. Szeto Ying-lun[1] , where this court said -
8. Having given careful consideration to what has been said by Mr. Bruce on behalf of the Attorney General, two of us are of the view that the District Judge has done everything that is required of him in law, particularly having regard to section 109A of the Criminal Procedure Ordinance. 9. We are unable to say, that the Judge was wrong in principle. 10. The next question is, therefore, whether the sentence imposed upon Chan King-wai was manifestly inadequate. 11. We are conscious of the fact that the respondent has a similar previous conviction and does not seem to have benefited from his period of training in a training centre. At least one of us, perhaps if sitting as the trial judge in the first instance, might have seriously considered sentencing the respondent to a term of imprisonment. We cannot say, however, that an order for a period in a training centre is manifestly inadequate. 12. We think that it is necessary to bear in the forefront of our minds that which we are required to do under section 109A of Cap.221, Criminal Procedure Ordinance, which reads -
13. Sub-section (1A) provides
14. The Third Schedule gives a list of ten offences which are excepted and section 7 of the Dangerous Drugs Ordinance is not one of the offences excepted under this Schedule. 15. In conclusion, we might add that if the Legislature should feel that a term of immediate custodial sentence should be imposed upon a young offender of tender years, in circumstances such as this, then it is open to them to amend the law accordingly. 16. For these reasons, this application is refused.
Power, J.A. - 17. For my part, I am satisfied that the approach of the trial judge was not wrong in principle, but I nonetheless consider that the sentence, given that this was an offence of possession of dangerous drugs for the purpose of unlawful trafficking and given that the respondent had been previously convicted of the same kind of offence, was manifestly inadequate, and I would, therefore, have allowed the application.
Mr. P. Dinan (D.L.A.) for Respondent. Mr. A.A. Bruce and Mr. L. Lo, Crown Counsel, for Crown. [1] Cr. App. 204/85 |