Cheng Ma v. The Queen
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CACC000703/1977
----------------- Coram: Trainor, J. Date of Judgment: 22nd July, 1977. ----------------- JUDGMENT ----------------- 1. The appellant in this case was convicted on his plea of guilty to being in possession of a dangerous drug for the purposes of unlawful trafficking, to wit opium. He was also convicted on his plea that he kept a divan in which opium was smoked. He was sentenced to two years imprisonment on the first count and to a fine of $5,000 or six months imprisonment in default on the second. He now appeals against the sentence. 2. The amount of opium found was of a total weight of 11.5 grammes, but in addition there was a glass bottle containing 12.1 grammes of opium in the form of opium dross. 3. The appellant has quite a record, having been first before the Court as far back as 1953 when he was fined $100 or 20 days for smoking opium. He had two further convictions pertaining to opium, and on the 28th July 1973 he was sentenced to a term of 3 years imprisonment for being in possession of dangerous drugs for the purpose of unlawful trafficking. It has been pointed out by Mr.Ma who appeared on behalf of the appellant in this case that on that occasion the drug involved was heroin and that it has been long accepted in the courts of Hong Kong that heroin is considered a much more dangerous drug than opium, and possession of that drug for the purpose of trafficking is much more heinous offence. With what Mr. Ma has said I thoroughly agree, but he then goes on to cite authorities for me that where a person has been sentenced for a series of offences he should not subsequently receive a more severe penalty for an offence which is lesser than the ones for which he has previously been convicted. To a certain extent one would subscribe to what Mr. Ma had said indeed one would subscribe to it completely if it were left in that context alone. But the fact is that the appellant received a penalty of 3 years for the heroin offence whereas he has received a sentence of 2 years for the instant offence; that is he has received a considerable lesser penalty than for the offence concerning the heroin even though he has had previous convictions. I can see no reason whatever for interfering with the penalty imposed by the learned magistrate. Not only is it not manifestly excessive but is, in my opinion, an appropriate sentence for the offence committed by the appellant in the circumstances in which he committed it. 4. I feel however that the second count is in a somewhat different position, that is the conviction for keeping a divan. This offence is so closely interrelated with the first count that I feel that any penalty imposed on the second count ought be served concurrently with the penalty for the first count. I therefore allow the appeal on the second count to the extent that I substitute a sentence of six months imprisonment on that count and order that it be served concurrently with the penalty imposed on the first.
Representation: Appellant in person. Mr. Alderdice, C.C. for respondent. |