Kwok Hang-lun v. The Queen

CACC000631/1982

BETWEEN

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 11th February 1983

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JUDGMENT

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Silke, J.A.:

1. This is the renewal of an application for leave to appeal against sentence.

2. The applicant was convicted upon his own plea before a Jury on three counts relating to dangerous drugs.

3. The first count was that, on the 23rd day of November 1981, he had in his possession 14.021 kilogrammes of prepared opium for the purpose of unlawful trafficking. He had been under surveillance and was seen getting into a taxi carrying a bag and accompanied by another person. The taxi was stopped and it was found that the bag contained the quantity of prepared opium charged.

4. The second count was that, on the same day, he had in his possession 11 grammes of prepared opium for the purpose of unlawful trafficking and the third count was, again on the same day, that he had in his possession 855.90 grammes of a mixture containing 244.90 grammes of salts of esters of morphine for the purpose of unlawful trafficking. These drugs were found in a premises at Sune Yan Street in Kowloon - the address of which the applicant had given to the police upon his arrest. It was his mother's address. He himself lived in other premises together with a woman and their children. He visited his mother on various occasions.

5. The sentences imposed by the trial judge were ten years on the first count, four years on the second count and ten years on the third count. These sentences were made to run concurrently and it seems clear to us that the trial judge was approaching the matter on the basis of totality.

6. The applicant had a clear record. He was aged 46. The trial judge accepted, and we think he was perfectly correct so to do, that the applicant was a courier and a store-keeper of these drugs.

7. In passing the sentences he did, the judge said:

"In my view, there was a period of time when prepared opium - one could take the attitude that the prepared opium was intended to go on the streets as opium, but there had been, I think, a number of cases within the last few years when we have had prepared opium being treated in Hong Kong and then going on the streets as heroin."

8. He was informed that the value of the drugs found was, in respect of the heroin, $50,000 wholesale, $150,000 retail and, in relation to the 14 kilogrammes of opium, $350,000 wholesale and $500,000 retail.

9. Mr. Ho, who appeared for the applicant, has submitted to us that generally the sentences were manifestly excessive, particularly in the light of that which he terms the "erroneous assumption" by the trial judge that the substantial quantity of prepared opium would be treated in Hong Kong and transmuted into heroin.

10. At the outset of the appeal Mr. Osborne, who appeared. for the Crown, made to me the surprising concession that the Crown did not rely on the fact that prepared opium would be transmuted in Hong Kong. He said that the Crown thought it unlikely that it could be so treated here.

11. There had been no reference in the course of the trial to a treatment of the drug prior to that which the trial judge said in passing sentence. We can sympathize with the view taken by the trial judge. But it would have been preferable had he referred the matter to counsel first so that he could have been addressed on the issue of treatment before passing the sentences he did. It would then, we presume, have been apparent that the Crown was not relying on the treatment aspect. However this was not done.

12. Mr. Ho referred us to CHAN Chi-ming⁽¹⁾ and. its general guidelines as to sentence. He submitted that a sentence of ten years in relation to the quantity of the mixture involved here on the third count was outside those guidelines. He further submitted that the 11 grammes of prepared opium, which attracted the sentence of four years would not, had it stood by itself, have attracted so severe a sentence and lastly he submitted that the sentence of ten years in relation to the 14 kilogrammes of prepared opium on the first count was excessive.

13. We think the only point of substance to be the emphasis of the trial judge on the treatment aspect of the prepared opium.

14. While in isolation the several sentences passed could be thought excessive the correct approach, and that adopted by the trial judge, is on the basis of totality.

15. Couriers and store-keepers must be fully aware of the evils in which they assist when they help those who are engaged in the drug trade. They offer protection by holding the drugs for those so engaged and assist them in their distribution of drugs, and they can expect little mercy.

16. There was, in the light of the concession by the Crown made in this court, a wrong approach by the trial judge. This application is granted and the appeal allowed to this extent that the sentence on the first count is reduced from ten years to eight years and that on the third count reduced from ten years to eight years. We do not interfere with that on the second count nor with the concurrent nature of the sentences, thus giving a totality of eight years' imprisonment.

(1)    (1979) H.K.L.R. 491

Representation:

B.K. Ho, Esq. assigned by D.L.A. for the applicant.

R.A. Osborne, Esq. for Crown/Respondent.