The Queen v. Wong Kin-wang

CACC000696/1983

IN THE COURT OF APPEAL

BETWEEN

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

Date: 11th April 1984

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JUDGMENT

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Silke, J.A.:

1. The applicant was convicted by a jury for the offence of possession of a dangerous drug for the purpose of unlawful trafficking. He subsequently appealed against that conviction and his appeal was dismissed. We are now concerned with his application in relation to sentence. He received a sentence of twelve years' imprisonment. There was an order that he pay $30,000 towards costs.

2. Also convicted at the trial was a co-accused, a girl, who received a sentence of eight years; and there was on the indictment a third male co-accused - the 2nd defendant - who pleaded guilty and received nine years' imprisonment.

3. In passing sentence, the trial judge had it in mind that the quantity of the drugs found - 7.669 kilogrammes of a mixture containing 6.079 kilogrammes of salts of esters of morphine - would merit a sentence in the region of twelve years' imprisonment.

4. The quantity was very substantial and it has been suggested by Mr. van Buuren that where sentence is based upon the quantity of the mixture concerned, as here, then there should be evidence of the knowledge of the actual quantity by person who is to be sentenced. This is not a submission which finds favour with this Court. If a man carries drugs he takes the risk.

5. But that having been said, we think the 2nd defendant, who received nine years, was somewhat fortunate. The judge allowed him that which appears to be a discount of three years in twelve. He could have received a sentence of fourteen years which would have been well merited.

6. The sentence of eight years imposed on the woman would appear to be more because she was a woman than anything else.

7. There does seem to be a disparity. Only in this regard, the 2nd defendant gave all the appearance of being the prime mover in this crime. This is reinforced by his plea of guilty and his attempt to exonerate the girl and to exculpate, if not exonerate, the applicant here.

8. As we have said a sentence, perhaps, of  fourteen years after trial would not have been inappropriate in his case. We think that there should be some difference between himself and the applicant although the applicant was convicted after trial and the 2nd defendant pleaded guilty.

9. To underline that we would set aside the sentence of twelve years and substitute one of ten years' imprisonment.

10. As regards the order for costs. While the trial judge clearly had in mind the bail money of $100,000 lodged by the applicant, he gave no specific reasons for the order he made.

11. It has been suggested in mitigation that the applicant in fact had used up his resources in the conduct of his defence. It would have been preferable had there been a further investigation as to the means of the applicant prior to the imposition of the order as to costs. We think that that order should be rescinded and we would quash the order as to the payment of $30,000 costs.

12. The application for leave to appeal is granted and the appeal allowed. The sentence of twelve years' imprisonment is set aside and a sentence of ten years is substituted. The order as to payment of costs is quashed.

Representation:

B. van Buuren, Esq. instructed by Messrs. Laurence Pang & Co. for applicant.

G.W. Alderdice, Esq. for Crown/Respondent.