Pravit Pramechit v. The Queen

CACC000665/1982

BETWEEN

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Coram: Huggins, V.-P., Silke & Barker, JJ.A.

Date: 27 October 1982

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JUDGMENT

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Silke, J.A.

1. The appellant was convicted upon his own plea of the offence of being in possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to a period of seven years' imprisonment. He appealed by leave against that sentence and we allowed that appeal by reducing the period to one of 6 years. We said we would give our reasons later and this we now do.

2. The appellant is a Thai national who arrived in Hong Kong from Bangkok by air in the afternoon of the 24th February 1982. Suspicion was aroused and his belongings were searched but without result. He was taken to Queen Elizabeth Hospital where a medical officer, upon an examination of his rectum, found it to contain foreign matter. He was admitted to a ward in the hospital and detained there. In the late evening of the 24th February the appellant vented four packets. Upon later examination these packets were found to contain 226.10 grammes of a mixture which mixture had a content of esters of morphine of 190.65 grammes.

3. It was agreed that the mixture could be converted into a mixture of 687.30 grammes which mixture would contain approximately 266.95 grammes of salts of esters of morphine. The total mixture would be available for sale to a street buyer or buyers and it would have a retail value of approximately $109,968.00.

4. The trial judge, basing himself upon this agreed evidence and following Suvit Utthayanwatana and another v. The Queen ⁽¹⁾ (unreported), passed the sentence he did in line with the tariffs set out in CHAN Chi-minx v. R. ⁽²⁾ for a "substantial quantity" - the guideline being five to eight years.

5. He expressed himself as having taken the guilty plea into account and, considering the "converted mixture" to place the amount in the higher part of the substantial bracket, thought himself left with "no alternative other than to impose the maximum sentence available to the District Court".

6. Mr. Sedgwick, who appeared for the appellant in this court, based his appeal upon two main grounds; one: that two passages in Suvit ^(l) were not considered by the trial judge and two: that the judge failed to give proper credit to the appellant for his plea of guilty.

7. The court in Suvit ^(l) , having said there should be some evidence to demonstrate how much of the "ultimate" material is likely to result from the mixture actually seized, went on at page 4:

"There should also be evidence that the mixture seized is either incapable of being, or at least very unlikely to be, sold directly for consumption. Such we under-stand, would be the case where, as here, the mixture consists mainly of esters of morphine. In the absence of such evidence, the CHAN Chi-ming guidelines should be followed unless there is some other aggravating factor, but where such a factor exists it is advisable that mention should be made of it in passing sentence."

8. Again at page 6 the court said:

"There was no evidence given in the present case, nor any statement by way of agreement between counsel, to indicate that the esters of morphine would inevitably be converted into a substance of considerably greater quantum than would be the case if the mixture seized had been composed mainly of salts of esters of morphine."

(emphasis mine)

9. It is Mr. Sedgwick's contention that there was no evidence here to show that the seized mixture was either incapable of being or at the least very unlikely to be, sold directly for consumption. And, while there was evidence that the seized mixture could be converted into a substance of considerably greater quantity, there was no evidence to show that such conversion would inevitably take place.

10. He also referred us to that portion of the judgment in CHAN Chi-ming⁽²⁾ at page 492 headed "General Considerations". First to the third item: "The type of drug"; and on this he urges that by the use of the word "morphine" in the passage the court was intending to include under the guideline set out all aspects of the drug including its esters. And, following from that, he referred us to that which was said in the second item:

"It is the quantity of the mixture which should be looked at, rather than its content."

He urges that, if the guidelines are to be applied, they should be as to the total mixture disregarding the fact that its content is esters of morphine:

11. We do not agree. In the "Third" item the Court was clearly using the words it did merely to underline the distinction it was drawing as between "hard" and "soft" drugs. It was not using the word "morphine" as a term of art. In the Second item, as there lay for consideration in CHAN Chi-ming ⁽²⁾ a mixture containing salts of esters of morphine, a substance which is sold directly to the consumer, we have no hesitation in saying that it was a mixture of that nature and not a convertible mixture containing esters of morphine that the court had in mind.

12. We would accept that, subject to an accused's right to call evidence in rebuttal, once the seized mixture is shown to contain esters of morphine and once there is evidence, either direct or by agreement, that the seized mixture is capable of being converted into a substance of greater volume which can be sold directly for consumption, then there is sufficient evidence to satisfy the test laid down in Suvit ^(l) and, in turn, following that case, to lead to the application of the guidelines in CHAN Chi-ming ⁽²⁾ to the quantum of` that saleable mixture.

13. One thing is certain: if they are applied it must be borne in mind that the drug concerned is esters of morphine and not salts of esters of morphine and that the mixture is capable of being converted into a much larger quantity of salts of esters of morphine. It matters not whether one makes a notional conversion into salts of esters of morphine and then applies the guidelines directly or adjusts the tariff for salts of esters of morphine and applies the adjusted tariff to the actual quantity of the salt. Nothing said in CHAN Chi-ming v. Reg. ⁽²⁾ requires that the guidelines shall be applied directly to a drug other than that there under consideration, nor, whilst recognizing that there are some "hard" drugs and some "soft" drugs, is one obliged by that case to ignore the fact that there are different degrees of "hardness." However one regards the guidelines laid down in CHAN Chi-ming v. Reg. ⁽²⁾ a sentence of 7 years' imprisonment for possession of 226.1 grammes of a mixture containing 190.65 grammes of esters of morphine for the purpose of unlawful trafficking is not manifestly excessive where the defendant urges no mitigating factors: it would, however, be at the top end of the permissible bracket. Although the learned judge stated that he had taken into account the appellant's plea of guilty, we thought that this meant he had started his assessment at a figure outside the permissible bracket and accordingly we reduced the sentence. That, of course, has nothing to do with the limit on the jurisdiction of the District Court.

(1)    Criminal Appeal No. 119 of 1982

(2)    [1979] H.K.L.R. 491

Representation:

A.W. Sedgwick for Appellant.

Moorfoot for Crown/Respondent.