The Queen v. Lam Kwan Wai

Case No.CACC 601/1989

Court

Court of Appeal

Date09 Oct 1990

Judge—

Case Document

100%

CACC000601/1989

IN THE COURT OF APPEAL	1989, No.601
	(Criminal)

Headnote

Sentence - Female applicant aged 23 convicted of possession of dangerous drugs for the purpose of unlawful trafficking together with co-defendant aged 36, each sentenced to imprisonment for 9 years. Submitted that trial judge failed to take into account disparity in ages and the fact that the applicant was a female.

Held: Sentencing Court must guard against any automatic assumptions based on sex or age unsupported by any basis in fact. Application refused as there was nothing to demonstrate trial judge was wrong when he approached sentencing upon the basis that the defendants were equal partners.

IN THE COURT OF APPEAL	1989, No.601
	(Criminal)

BETWEEN

THE QUEEN

AND

LAM KWAN WAI

(2nd Applicant)

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

Date of Hearing: 9 October 1990

Date of Judgment: 9 October 1990

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the court.

2. The charge which the applicant faced was that she and a man CHAN Tat-kwong on or about the 18th of April, 1989 inside Room 2, Block E, 5th floor, No.2 of Tung Chau Street, Mongkok, had in their possession dangerous drugs namely 2,371.90 grammes of a mixture containing 101.61 grammes of salts of esters of morphine and 49.23 grammes of a mixture containing 37.67 grammes of salts of esters of morphine for the purpose of unlawful trafficking. The applicant was convicted after trial before Deputy Judge Saied and a jury and was sentenced to imprisonment for nine years. Her appeal against conviction having been dismissed, she now pursues an appeal against the sentence of nine years.

3. Her grounds, which have been argued today by Mr. Grounds, are that:

"	(1)	That there was no evidence from which the Judge could reasonably infer that the Appellant was an equal partner with CHAN Tat-kwong. There was no suggestion of her having possession of any profits from the drugs.
	(2)	That such evidence as there was, demonstrated that Chan was the organizer and retailer of the drugs, and that the Appellant, if implicated at all, was in the lesser role of packing and storing.
	(3)	That the Judge ought to have given weight to the fact that Chan was a mature man of 36 years of age and the appellant was a young lady of 23 years of age and to have drawn a proper distinction accordingly.
	(4)	Thereby and in all the circumstances of the case the sentence of 9 years imprisonment imposed upon the Appellant was manifestly excessive."

4. Dealing firstly with the fourth ground we can say at the outset that we are satisfied that the sentence itself was not manifestly excessive and was indeed towards the lower end of the applicable guidelines.

	The trial judge when sentencing said:
	"Considering the circumstances in which this offence was committed, I think that both of you are equal partners in this scheme or this operation, and when I do not know the exact extent and the kind of information which you have offered to the police, I am going to treat both of you on the same footing."

It is this passage, particularly the observation that the applicant and the 1st defendant should be treated as "equal partners", which is the subject of criticism.

5. But the trial judge was proceeding upon the basis of the evidence before him which on its face went no further than to establish joint possession. As the matter stood upon that evidence the trial judge was entitled, indeed, it might be said, driven to conclude that the defendants were equally culpable. It must also be said that nothing was raised in mitigation to suggest otherwise.

6. However, Mr. Grounds has referred us is a confessional statement in which the 1st defendant said that the applicant had only helped to pack the drugs. This statement was not relied upon by the applicant in mitigation, and, indeed, was never really before the court as evidence of its contents as the 1st defendant denied that he had ever made it and it was not admitted after a voir dire. Mr. Grounds points to it but concede that he cannot place any real reliance thereon.

7. The real thrust of his argument is that the disparity in ages, the fact that the applicant was a female and her deceitful seduction by the 1st defendant, who concealed from her that he was a married man, should have led the judge to the conclusion that she played a minor role. He points out that sentencing courts not infrequently adopt such an approach when dealing with a situation where there is an older male and a younger female defendant. This may be so, but the approach properly to be take must depend very much upon the circumstances in each case and sentencing courts must guard against any automatic assumptions based on sex or age which are unsupported by any basis in fact.

8. What this Appellate Court must ask itself is whether the trial judge was wrong, given the information before him, to deal with the defendants upon the basis that they were equal partners. After giving careful consideration to the grounds ably argued by Mr. Grounds and to all the surrounding circumstances, we find ourselves. unable to say that the approach taken by the judge was in error.

9. The application for leave to appeal against sentence must therefore be dismissed.

Representation:

Mr. D.G. Saw (Crown Prosecutor) for the Respondent.

Mr. Christopher Grounds (instructed by Messrs. Tang, Wong & Cheung) for the applicant.