Chan Wing-yu v. The Queen

CACC000676/1980

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 676 OF 1980

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Coram: Mr. Justice Silke in Court.

Date of Judgment: 23rd October, 1980

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JUDGMENT

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1. The appellant was convicted after trial in San Po Kong Magistracy of the offence of possession of dangerous drugs for the purpose of unlawful trafficking. The charge made reference to ten polythene bags containing a total mixture of 120.46 grammes of which there were 29.57 grammes of salts of esters of morphine.

2. He was sentenced to three years imprisonment against which sentence he appealed.

3. The appellant is a sixty seven years old man. When he first appeared before me he was clearly in poor physical condition and was unable to speak. A medical report from the Acting Consultant Surgeon of the General Surgical Unit of Queen Mary Hospital stated that he was suffering from carcinoma of the tongue and benign prostatic hyperthrophy.

4. In these circumstances I thought it preferable that the appellant be given the benefit of legal assistance and, with his usual willingness and speed, the Director of Legal Aid assigned Counsel. I am grateful for the assistance which has been rendered.

5. Mr. Wally Yeung said everything that could be said on behalf of the appellant at the resumed hearing. He could not, and rightly so, argue that the sentence was excessive even for a man with a clear record.

6. The substance of his submission was an ad misercordiam plea.

7. I also had the benefit of a probation report.

8. I note the learned Magistrate's reasons, shortly given upon a review of sentence, for dismissing that review. They were (1) Pleaded not guilty; (2) Quantity very substantial.

9. A guilty plea can be a reason for a discount on that which would be the normal sentence but a plea of not guilty should not be a reason for the enhancement of a sentence.

10. But I agree the quantity was substantial.

11. There were placed before me two further medical reports dated 11th September and 21st October 1980. Neither were of great assistance save that the latter indicated that the appellant was under investigation for prostatism and was due for re-admission to Queen Mary Hospital for special examination. It also said that his tongue cancer was of long standing.

12. In Lam Hak Hung v. The Queen ⁽¹⁾ the Full Court had for consideration a plea in misericordiam on the grounds of humanity. That was also a drugs case and the appellant was aged 72. The possibility, as here, that the appellant would die in prison was referred to.

13. Huggins, J. (as he then was) had this to say:

"Be that as it may, in our view this is not a matter with which this Court is concerned. It has been said time and time again that the Courts cannot regard it as a matter of mitigation that a person is either very young or very old when he embarked upon the manufacture of dangerous drugs or involved himself in trafficking in dangerous drugs. Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old - people who may have some ground for pleading for the mercy of the court if they are in fact arrested."

14. Views which are very apposite to the situation here and which, with respect, I adopt.

15. It is a further consideration, though not by any means an overriding one, that the appellant will receive all the treatment necessary during the period of his sojourn in prison.

16. While one has sympathy with the physical state of the appellant it is not, in my view, a reason for altering what is a proper sentence.

17. The appeal against sentence is therefore dismissed.

Representation:

Mr. Wally Yeung (D.L.A.) for appellant.

Mr. Frank Wong for Crown.

(1) Crim. Appeal 724 of 1972 (unreported)