Ng Kam Fun v. The Queen
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CACC000619/1968 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO.619 OF 1968 (On appeal from North Kowloon Case No. 31249 of 1968) -----------------
----------------- Coram: Rigby, S.P.J. Date of Judgment: 15 November 1968 ----------------- JUDGMENT ----------------- 1. As the learned magistrate himself appreciated, this is by no means an easy case for the purpose of determining what would be the appropriate punishment to impose. The facts of the case were that on the afternoon of the 4th of August, a police party, in consequence of information received, raided a block of flats in Kowloon since they had reason to believe that dangerous drugs were being sold on those premises. 2. The police party entered a flat on the seventh floor, and found inside an old man and a young girl. The flat was searched and nothing was found in it. Whilst the police were still in the flat the present appellant entered with a small boy. She was asked by a policeman, on the instructions of the officer-in-charge of the search party, as to whether she had anything prohibited by law in her possession. She at first said she had nothing, and then subsequently, when pressed, she produced from under her jacket a brown paper bag tied with a rubber band. Upon it being opened, it was found to contain three large packets the contents of which, upon subsequent analysis by the Government chemist, were found to consist of 181.6 grammes of barbitone. 3. At her trial, the appellant pleaded "not guilty" to the charge, and the explanation she put forward was that she had gone down into the street with her grandson to buy some bread and that upon returning to the premises her grandson had picked up this packet which he had handed to her, and that she had retained possession of it, not knowing what it was. The learned magistrate disbelieved that explanation and convicted her. 4. Originally at the opening of this case the appellant had appealed against both her conviction and sentence, but Mr. Ip, who appears for her, has, quite properly, abandoned the appeal against conviction, which accordingly stands dismissed. 5. Turning now to the matter of sentence. The appellant is a 62 year old woman, with children and grandchildren. Her husband resides in the Philippines and is apparently in a fairly substantial way of business, and he remits to her approximately one thousand dollars a month for her maintenance. She, in fact, lives at the premises which were raided by the police and she lives there with her youngest son and his family. The youngest son runs on these premises a small knitting factory. 6. The appellant has never been in any sort of trouble before. She is, as I say, a woman of some 62 years of age with grandchildren. The learned magistrate himself said that the appropriate sentence in this case was a matter which gave him the greatest concern. He pointed out that the money which she was receiving might indicate lack of incentive to become involved in the drug trade. He went on to say it was not suggested that she was addicted herself, and she has no criminal record. Nothing of any suspicion was found in her flat and, indeed, it is true to say that there is no indication, at any rate upon the record, that she has any association whatsoever with persons concerned in the drug trade. 7. However, the quantity of dangerous drugs found in her possession was substantial. On the one hand it is entirely appropriate that in cases of this kind where persons are found with substantial quantities of drugs that a prison sentence should be imposed. On the other hand, the Court is always reluctant to send a first offender, particularly a 62 year old woman with grandchildren, to prison, if any other appropriate way of dealing with her can be reached. It is, of course, essential to bear in mind in these cases that this type of offence is prevalent and it is necessary to impose some form of penalty which will serve as a deterrent to others. 8. The case is one, indeed, which has caused me just as much concern as it obviously caused the learned magistrate. Crown counsel himself conceded that in view of the age and the fact that the appellant was a first offender the sentence in this case was, to use his own words "Somewhat high and somewhat harsh". Nevertheless, he pointed out, very properly, that this type of offence is, of course, a matter for serious concern. I enquired from him what would be the approximate value of this quantity of barbitone if sold on the black market, and he informed me that it would be about two hundred dollars. He went on to add that this quantity of barbitone, if mixed with heroin, would provide enough for approximately two thousand 'smokes'. 9. The appellant was convicted on the 23rd of September and she has been in prison since that date a matter of nearly eight weeks. That in itself is not insubstantial punishment. I would have wished to have ordered the appellant to enter into a bond to be of future good behaviour, coupled with the imposition of a substantial fine, but unfortunately the two penalties cannot be combined. 10. In all the circumstances of this case, bearing in mind, as I say, the appellant's age, the fact that she has never been in trouble before, the fact that she has already been over seven weeks in prison, I am of the opinion that the appropriate punishment in this case, at this stage, is the imposition of a fine. I therefore allow this appeal, quash the sentence of imprisonment and in lieu thereof impose a fine of two thousand dollars; six months imprisonment in default of payment. 11. The appellant may be discharged forthwith. In default of her paying the fine within the period of fourteen days she will be rearrested and will thereafter serve a sentence of six months. Representation: John IP of Messrs. of John Ip & Co. for Appellant. Winter, C.C. for Crown/Respondent. |