Tsui Fong v. The Queen
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CACC000664/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 664 OF 1968 -----------------
----------------- Coram: Briggs, J., Wills-Owens, J. and Huggins, J. Date of Judgment: 23 December 1968 ----------------- JUDGMENT ----------------- 1. The appellant in this case seeks leave to appeal against a sentence passed upon him by the District Court. He pleaded guilty to the offence of being in possession of a considerable quantity of dangerous drugs contrary to section 10 of the Dangerous Drugs Ordinance and he was sentenced to four years' imprisonment. 2. In sentencing the appellant the trial judge treated him as having a clear record. The judge also added that he inferred from the amount of drugs and implements in the possession of the appellant that the drugs were not intended for his own use. The appellant was caught with about twenty pounds of opium in various stages of preparation. 3. We treated the application for leave to appeal as the appeal itself and reduced the sentence from four to three years to commence from the date of conviction. We took this course because we were of the opinion that the sentence imposed was unusually high for this type of offence and that the fact that the appellant had pleaded guilty and, indeed, had never denied the charge did not appear to have been taken sufficiently into consideration. 4. This aspect of the case calls for no comment but two matters caused us concern during the hearing. 5. The judge recorded the plea, after which counsel for the prosecution outlined the facts. It was common ground that one fact is incorrectly recorded: counsel is recorded as having said "there were instruments suitable for manufacturing heroin" in the sitting room at the time of the arrest of the appellant. In fact we are told what counsel said was "suitable for manufacturing prepared opium." We do not think that this matters very much in the circumstances, prepared opium being but one stage in the manufacture of heroin. 6. However, later in the record the following statement appears - "The defendant admits the facts". As it stands that statement is equivocal. It appears after an entry that certain reports from the Government chemist and the appellant's Criminal Record Form were handed to the court. It could therefore relate either to the statement of the circumstances of the commission of the offence as incorrectly recorded or to the circumstances as stated by the prosecutor or could include also the statement of previous convictions contained in the Criminal Record. 7. The prosecution chose to proceed in the District Court and not by indictment in the Supreme Court. In the District Court the maximum punishment of imprisonment which could be inflicted was five years. The maximum punishment of imprisonment which could have been inflicted by the Supreme Court was fifteen years. In addressing the court Mr. Mills-Owens suggested first that the learned District Judge had passed sentence on the basis that the charge was one of manufacturing prepared opium and not merely one of unlawful possession. For the unlawful manufacture of prepared opium the Supreme Court could have passed a sentence of life imprisonment and therefore such a charge was not triable before the District Court. Quite apart from that it would manifestly have been wrong to assume the commission of an offence which had not been charged, but there is no evidence that the learned judge misdirected himself in this way: the only reference which he made to "the instruments suitable for manufacturing heroin" was in relation to the question whether the drugs found were or were not intended for the appellant's own use. 8. However, Mr. Mills-Owens further submitted that the judge had in any event taken into consideration the fact that the appellant might have received a sentence in excess of five years' imprisonment had he been tried on indictment and that the judge had in consequence passed a longer sentence than he would otherwise have done. Again, we see no reason to believe that the learned judge did err in this way. We think it right to say that the duty of a sentencing court is to assess the proper sentence after taking into account the circumstances of the crime and the character of the offender. If the proper sentence is beyond the powers of the court then the sentence must be reduced until it lies within the powers of the court. There is, however, no principle which requires a judge to pass a heavier or lighter sentence because the maximum sentence which could have been inflicted by some other court in which the accused might have been tried was different.
23 DEC 1968 Representation: Mr. Mills-Owens (Shea Co.) for Appellant. Mr. Duckett C.C. for Respondent. |