The Queen v. Chan Ka Chui

IN THE COURT OF APPEAL

1987, No. 392
(Criminal)

BETWEEN

THE QUEEN

and

CHAN KA CHUI

________________

Coram: Hon. Yang, Ag. C.J., Power, J.A. & Macdougall, J.

Date of Hearing : 1st December 1987

Date of Judgment: 18th December 1987

________________

J U D G M E N T

________________

Power,J .A. :

1. The applicant was charged that he, on 15th March 1987 at the staircase landing of the 12th floor, Block 5, Yuen Long Estate, Yuen Long, had in his possession a dangerous drug, namely 73.64 grammes of a mixture containing 6.09 grammes of salts of esters of morphine for the purpose of unlawful trafficking. He pleaded not guilty to that charge and was, after trial in the District Court, found guilty.

2. The facts revealed that he had been stopped by uniformed officers and, having been caught after a chase, was found to have 17 packets of heroin tucked inside his underpants. The trial judge following the guidelines in CHAN Chi-ming v. R.[1] sentenced him to imprisonment for 4½ years. When so doing he stated:

"He had one previous conviction for the possession of dangerous drugs for the purpose of unlawful trafficking for which he was sent to the Drug Addiction Treatment Centre in 1982 with no conviction recorded. Nevertheless there has to be a conviction before a detention order can be made.

In mitigation, I was told that he had only recently relapsed to dangerous drugs and that he was recently married.

I bore in mind that he was carrying the dangerous drugs in a direction away from his home and had some regard to his previous similar (but unrecorded) conviction. I referred myself to CHAN Chi-ming’s case for guidance and so came at a sentence of 4½ years".

3. The applicant now appeals against that sentence and urges three specific grounds:

"1. The learned trial judge erred in having regard to a previous court appearance of the applicant when no conviction had been recorded;

2. the learned trial judge erred in placing emphasis on the direction away from home being taken by the applicant when apprehended,

3. the learned trial judge should nave had some regard to the very low concentration of active material in the mixture."

4. We will deal firstly with Grounds 2 and 3.

5. The complaint in Ground 2 is that it was wrong for the trial judge to place emphasis upon the fact that at the time of arrest the applicant "was carrying the dangerous drugs in direction away from his home". We find no merit in this ground. It was in our view perfectly proper for the trial judge to take into account, when assessing the gravity of the offence, that the applicant when arrested was abroad with a quantity of dangerous drugs packaged ready for sale. It was a factor to which he was entitled to give weight when assessing a sentence.

6. We turn to Ground 3. Mr. Laskey who appeared for the applicant when arguing this ground submitted that some weight should be given to the strength of the mixture. He was, when so doing, fully aware of the statement in CHAN Chi-ming v. R.¹ that:

“It is the quantity of the mixture which should be looked at rather than its content. This is because it is the mixture which is sold to the consumer.”

He pointed out that in the present case the mixture was a very weak concentration, the dangerous drugs being under 8% of the whole, and compared this to the concentration of the mixture in CHAN Chi-ming’s¹ case where the drugs were 30% of the whole. The judge, in our view, was right to follow the CHAN Chi-ming¹ guideline set out above and we, therefore, find no merit in this ground.

7. We now turn to the first ground argued by Mr. Laskey. At the time of conviction the applicant admitted to three offences of fighting in a public place. On the first two of these he was convicted and fined and on the third he was convicted and sentenced to 14 days imprisonment suspended for one year. He also admitted that on 9th February 1982 he had been found guilty of trafficking and that having ordered him to be detained in a Drug Addiction Treatment Centre, the court had further ordered that no conviction be recorded. Mr. Laskey submitted that the court should not have had any regard to that finding of guilt.

8. The detention order was made under s. 4 of the Drug Addiction Treatment Centres Ordinance Cap.244 which states in s.4(4), that:

"When a court makes a detention order, no conviction shall be recorded against the person in respect of whom the order is made unless, in the opinion of the court, the circumstances at the offence so warrant and the court orders accordingly".

The trial judge did, in his Reasons, speak of the applicant having had a previous “conviction” for possession of dangerous drugs for the purpose of unlawful trafficking. However he was under no misapprehension in this regard as he clearly states in those Reasons that it was ordered that no conviction be recorded.

9. Mr. Laskey referred us to R. v. WONG Wai-tak[2] in which the Chief Justice said:

"The object of giving magistrates power to record no conviction after a finding of guilt was to enable a defendant to avoid the disadvantages that a recorded conviction frequently brings. If no conviction is recorded a court ought not to subsequently to take it into account in determining sentence".

This followed the earlier case of LI HOK-ming [3]in which Huggins, J.A. sitting alone on an appeal from a magistrate stated at 135:

"I am not aware of any clear ruling by any superior court in Hong Kong on this point. I do know that the Court of Appeal has assumed in the past that it was wrong when assessing sentence to refer to a previous offence for which no conviction was recorded. The possibility mentioned by Fox, J. causes me no disquiet. It is not a sufficient answer that a court when considering sentence requires to know everything about an offender and ought therefore to be told of the previous finding of guilt in another case even if there was no conviction recorded. I think it was clearly the intention of the Legislature that neither the conviction nor the fact that a previous offence had been committed should ordinarily be referred to."

10. The real question, as Huggins J .A. pointed out, is - What did the Legislature intend?

11. One argument put forward by those contending that the courts should be informed of a previous finding of guilt where no conviction was recorded is that if this information be withheld the courts will be unable to deal properly with the person should he offend again (see Sentencing: Is Anything Known (1980) H.K.L.R. 77).

12. If, however, it was the intention of the Legislature, when enacting that "no conviction shall be recorded", that the fact that the person had committed the offence should, thereafter, be withheld from the court then it matters naught that the courts will thereby be left at a disadvantage.

13. It might, however, sensibly be asked why the Legislature should have intended, without specifically so stating, that this information should be withheld from the courts.

14. If a person such as a prospective employer or an officer of the immigration authority of a foreign country to which a person seeks to emigrate were to ask "Have you been found guilty of any offence?" he would be entitled to a truthful answer.

15. The courts, however, would, if such information cannot be disclosed to them, be prevented from making an informed assessment as to the proper punishment. It must be borne in mind that the making of a proper assessment is an issue which concerns not just the individual offender but also the community at large.

16. After consideration we are satisfied that we should not follow the approach set out in the 2 cases to which we have referred. We are satisfied that the words of s.4(4) mean no more than what they say, that is that no conviction is to be recorded, and that the Legislature intended no more when enacting the Ordinance than that the person against whom the detention order was made should not have imposed upon him the added stigma of conviction.

17. In Huggins v. Hart[4] Barrow clough, C.J. had to consider whether s. 18 (2) of the Offenders Probation Act 1920 precluded a court, when dealing with a subsequent offence, from taking into consideration the fact that the offender had committed an earlier offence. Section 18(2) is a strongly worded section in that it provides that "a discharge under this section shall have all the effect of an acquittal of the accused”.

18. The Chief Justice stated, at p.1204:

"In my opinion, the language used in s.18(2) does not preclude a Court when dealing with a subsequent offence; from taking into consideration the fact, if it be a fact, that, the prisoner had committed an earlier offence; provided it also takes into consideration the further fact that the circumstances of the earlier offence were such as to warrant a discharge without conviction or sentence. If Parliament had intended that the earlier offence should be entirely forgotten and completely disregarded, it would have used very different language from that which was used. If that consequence is to be assumed, a great deal of the value of a discharge without sentence would be lost, and Magistrates would hesitate to invoke the procedure, because, on a subsequent occasion, it could not be shown that the prisoner had already had a warning and had already been treated with leniency by the Court."

19. We are satisfied that the same considerations apply to the Hong Kong Legislation and are likewise satisfied that different language would have been used by the Legislature had it intended that the fact of guilt of a previous offence should thereafter be withheld from the courts.

20. The practice in England of referring both to conviction and to "findings of guilt" revealed in cases such as R. v. Hayler[5], R. v. Richardson[6] and R. v. Turner[7], supports the view we have taken. In R. v. Turner⁷ and the other cases use similar language, Lord Parker, C.J. when referring to the appellant's record, said, at p.282,

"I should add that the appellant is 46, that he lives with a Miss Nelson, by whom he has two children, and that he has three findings of guilt, 14 previous convictions, and in his favour that he seemed, under the influence possibly of Miss Nelson, to be turning over a new leaf in that his last conviction was in 1966."

The courts in England have no hesitation in referring to "findings of guilt" i.e. findings of guilt of offences as to which no convictions have been recorded.

21. We think it important finally to make some observations as to the use to which the information that an offender has been found guilty of an offence as to which it has been ordered that no conviction is to be recorded can be put.

22. The proper use can only be appreciated when the sentencing process appropriate to circumstances such as these is borne in mind. Once the offender has been found guilty of the offence the court must, leaving aside personal circumstances and previous record, make an assessment as to the proper sentence to be imposed given the type of offence and the circumstances of its commission. When this has been done the court must give credit for absence of previous convictions and for personal circumstances.

23. What is the position where there is an offence as to which no conviction has been recorded? The sentencing court must in such case bear in mind that the offence was one which the previous sentencing court was satisfied did not warrant the recording of a conviction. An offender against whom a finding of guilt with no conviction recorded exists would clearly not be entitled to the same credit as would be given to a person who had not previously committed an offence but, it must be added, he would be entitled to a degree of discount that would not be given to a person against whom a conviction for a similar offence had been ordered.

24. As we have observed when arriving at the sentence 4½ years the trial judge said:

“I bore in mind that he was carrying the dangerous drugs in a direction away from his home and had some regard to his previous similar (but unrecorded) conviction. I referred myself to CHAN Chi-ming's case for guidance arid so came at a sentence of 4½ years”.

25. CHAN Chi-ming¹ states that where the quantity is small (between 30 to 150 grammes) the sentence should range from 3 to 5 years.

26. The quantity in the present case 73.64 grammes falls squarely in the middle of the range. At first sight a sentence of 4 years might have been thought to be appropriate. However the trial judge saw, as he was entitled to do, an aggravating circumstance in the fact that the applicant was carrying the dangerous drugs, packed so as to be readily marketable, about with him.

27. The trial judge might have been said to have been acting in accordance with proper sentencing principles had he made an assessment that this warranted a term of imprisonment of 5 years and then reduced it to 4 years and 6 months giving some credit for the applicant's record which, although not clear, contained three dissimilar offences and one previous offence as to which no conviction had been recorded.

28. This, however, does not appear to have been his approach. We say this both because CHAN Chi-ming¹ which he followed, states that even a clear record can be allowed to do little to reduce sentence and because it seems from the passage set out above that he regarded not only both the carrying of the drugs but also "the previous similar (but unrecorded) conviction" as aggravating factors.

29. While it is not absolutely clear that this was so we are satisfied that we should in fairness to the applicant approach the matter upon the basis that it was and that the trial judge was wrong in his approach to sentencing.

30. We now turn our minds to the question of whether the sentence was a proper one. We give due weight to the fact that the applicant was caught while carrying the drugs. We are, further, satisfied, in accordance with the guideline in CHAN Chi-ming¹, that the applicant, even if he be treated as having no previous convictions, would not be entitled to any discount. Leaving the judge’s approach aside, we are nonetheless satisfied that 4½ years is a proper sentence and the application must, therefore, be dismissed.

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent

Mr. Laskey (Poon & Dissanayaki) for the Applicant

[1]  (1979) H.K.L.R. 491

[2]  Criminal Appeal 1195 of 1986

[3]  (1978) H.K.L.R. 131

[4]  (1955) N.Z.L.R. 1202

[5]  (1967) C.A.R. 363

[6]  (1968) C.A.R. 317

[7]  (1970) 2 All E.R. 281