Wong Wah-man v. The Queen
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CACC000668/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 668 OF 1969 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 22 October 1969 ----------------- JUDGMENT ----------------- 1. The appellant was charged before the magistrate on charges of keeping an opium divan and smoking opium. When he first appeared he pleaded not guilty but subsequently changed his pleas to guilty. The appellant and his co-accused were found in a small hut with all the paraphernalia for smoking opium. There was one pipe amongst that paraphernalia. His story throughout has been that this was what one might call a private divan: it was a group of friends which had got together and asked him to rent the premises which they were to use jointly. It was not a divan which was open to the public. That story was not challenged and must, I think, be accepted as the truth. 2. The learned magistrate imposed sentences of 9 months' and 1 month's imprisonment concurrent. Mr. Ip who has appeared before me on behalf of the appellant has confined his attack to the sentence on the first charge. He has contended that it is the uniform practice of the court to impose only a fine in opium cases. Counsel for the Crown does not accept that as being correct and for my part I think the proposition is stated too widely. Nevertheless I entirely agree that the courts do impose lesser sentences where the drug is opium rather than heroin. If this had been a heroin divan the sentences would undoubtedly have been very much higher. 3. In his statement of findings the learned magistrate did not refer expressly to the facts that this divan was available only to the association. He thought that a deterrent sentence was appropriate but that does not necessarily mean that he rejected the story which the appellant put forward. The appellant had one previous conviction for smoking opium. That was at the end of 1962 and he was then fined $100 4. Accepting, as I have said, that this was a private divan I am of opinion that this sentence was unduly heavy. My thief concern has been whether imprisonment was required at all. The appellant has already served more than 1 month in prison and it was for that reason that Mr. Ip did not press the appeal in relation to the second charge. I think in all the circumstances that a heavy fine would be a proper sentence here and I am told that the appellant is in a position to pay a fine. The appeal will be allowed in respect of the first sentence and a fine of $2,000 will be substituted. He will be allowed seven days in which to pay this fine and I emphasize that I have allowed the appeal only upon the facts of this particular case and it should not be thought that a sentence of 9 months' imprisonment is improper where an opium divan, however small, is available to the public. 22nd October, 1969. |