The Queen v. Sin Kei

IN THE COURT OF APPEAL

No 570 of 1987
(Criminal)

BETWEEN

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Coram: Hon. Silke, V.-P., Hunter & Power, JJ.A.

Date of hearing: 30th December, 1987

Date of delivery: 30th December, 1987

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J U D G M E N T

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Hunter, J.A.

1. On 9th November of this year, on his plea of guilty, the applicant was sentenced by Wong J. to a term imprisonment of 7 years. The applicant had in fact pleaded guilty at the Magistrate's court on 21st October to a charge of possession of dangerous drugs for the purpose of trafficking. The drug in question was pure opium. That which was in his possession was the very considerable quantity of 12.68 kilogrammes. I should ado that when this was discovered at his premises on 18th July 1987, he was also found to be in possession of the impedimenta of a person engaged in trafficking, Chinese scales, a top pan balance and polythene bags. He was also in possession of a large sum of money.

2. In arriving at his sentence of 7 years, the trial judge took as his starting point a sentence of 10 years which he though was appropriate. As far as mitigation was concerned he gave a substantial discount for the only real point, which was that the man had pleaded guilty at the first available opportunity, and at least had attempted to give the police what he said was the all information in his possession as to his source of supply of this drug. So in effect the judge took his starting figure of 10 years and by reason of the plea discounted it to 7 years. Now the main attack which has been launched by Mr. King for the applicant is on that starting figure. The problem really for us is to construe the judgment of the court given In Attorney General v. Chan Chi Man[1]. This court has from time to time laid down guidelines, scales of sentences for the assistance of sentencing judges, with the main purpose of seeking to achieve consistency between sentences. Those guidelines having been laid down, it becomes the function of this court to attempt to apply them consistently between the various persons that come before it.

3. As far as pure opium is concerned, the first guidelines had been laid down in The Queen v. Lau Yiu Nam[2]. In that case the court sought to do no more than suggest a sliding scale based on quantity which went up to the figure of 3,000 grammes. In Chan Chi Man¹ this court went further. It had before it an application for review of sentence in relation to a sentence for possession of the drug, methaqualone. In laying down guidelines for the drug methaqualone in powder form and in tablet form, this court said that the sentences for methaqualone should be the same as those for opium. At p 226 of the report the court laid down a suggested scale of tariff for methaqualone, and for opium as well, from 500 grammes up to 9,000 grammes. For over 9,000 grammes the appropriate sentence was said to be : "6 years upwards".

4. The judgment then goes on in these terms :

"The tariff goes further in paragraphs (e), (f) and (g) than that prescribed for opium in Lau². The latter should therefore be amended in the same manner. Thus the above tariff can be said to replace Lau, with regard to opium.

The above guidelines apply to possession of methaqualone in powder form, which can readily be weighed in grammes. On this basis (and this is the important matter for us), a proper sentence on this respondent, found in possession of over 33 kilogrammes of methaqualone, would he in the region of 7 to 10 years."

What the court did in this case was to lay down a suggested tariff which progressed uniformly up to above 9,000 grammes. Then it flattened out sharply to accommodate the figure of 6 years for 9,000 grammes, and the range of 7-10 years for 33 kilogrammmes.

5. The problem raised by this appeal is where to fit this case within that scale; a case concerning just 12½ kilogrammes; with a view to treating this applicant in the same way as other applicants are likely to be treated, or other defendants are likely to be treated, by sentencing judges with this scale in mind. It seems to us that when you have a scale which flattens out as sharply as the figures suggest in Chan Chi Man¹ one's starting figure for the quantity of 12½ kilogrammesis of the order of 7 years; it may be in the range of 7 to 8. So that for the purposes of this applicant, we would be minded to adopt a starting figure of 7 years, and then to apply to that a discount appropriate to the plea of guilty. We adopt the same approach as the trial judge, and would allow a discount of 2 years. That produces a figure of 5 years.

6. In the circumstances, we think that the fair application of the tariff in Chan Chi Man¹ to this applicant produces a sentence of 5 years in all, not a sentence of 7 years. We therefore allow this application; allow the appeal to that extent; and reduce the sentence from 7 years to 5 years.

Alexander S. King (DLA) for Applicant

A.P. Duckett, Q.C., Deputy Crown Prosecutor and Miss Evena Chan, Crown Counsel for Crown/Respondent

[1]  [1987] H.K.L.R. 221

[2]  [1986] H.K.L.R. 964