The Queen v. Shum Chi Wa

CACC000764/1995

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Coram: Hon. Litton VP, Liu & Mayo JJA in Court

Date of Hearing: 23 May, 1996

Date of Judgment: 23 May, 1996

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JUDGMENT

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Liu JA:

1. An undercover policeman made contact with the applicant and succeeded in obtaining from him supplies of various quantities of cannabis.

2. On 10 August 1994, the undercover policeman was supplied with 0.28 gms. of cannabis. On 2 September 1994, a further quantity of 76.14 gm of cannabis was supplied. On 6 September 1994, a relatively larger quantity, 117.94 gm of cannabis, was sold to the undercover policeman by the applicant. The big haul, as it were, came on 19 September 1994, on which date as much as 2.07 kg of cannabis were supplied to the undercover policeman by the applicant.

3. These various incidents form the subject-matters of the 2nd, 3rd, 4th and the 1st charges against the applicant in the District Court. The case came before Deputy Judge Barnes. The applicant pleaded guilty to all four charges, and he was sentenced accordingly to two months', four months' and nine months' imprisonment and for the 1st charge 16 months' imprisonment. The total term is, therefore, 28 months.

4. The applicant seeks leave to appeal against his sentence. The parameter of his complaint is narrow. Mr Mackay, counsel for the applicant, submits that the sentences are manifestly excessive in the sense that a much higher starting point was adopted for the sentencing in each case; and the sentences in all these charges ought to run concurrently rather than consecutively as ordered by the Deputy Judge.

5. Before us, it is clarified by way of concession that the cannabis in all the charges was herbal cannabis, not cannabis resin. Our attention is drawn to the case of the Attorney General v. Tuen Shui Ming & Another [1995] 2 HKC 798. The tariff recently set by this court, differently constituted, for cannabis resin trafficking is at p. 805. A distinction was drawn between trafficking in cannabis resin and trafficking in herbal cannabis. Suffice it to set out paragraph (4) of the head-note in that case, appearing at p. 799:

"(4) the concentrations referred to in Chan Chi Man were no longer correct. A sentencing court must bear in mind that cannabis resin has an average concentration of THC about four times higher than the average found in herbal cannabis" and that cannabis oil has an average also about four times higher than the average in cannabis resin. "(The sentencing court) may adjust within a range of the tariff by giving discount of up to a year for herbal cannabis"

6. The nature of the cannabis in the charges did not seem to have been specified for the consideration of the Deputy Judge. It was, therefore, understandable that she adopted the tariff suggested in Tuen Shui Ming for trafficking in cannabis resin. On the present concession of the Crown, the starting point for trafficking in herbal cannabis must necessarily be much lower than the starting point so adopted by the Deputy Judge.

7. As for the 1st charge, bearing in mind what has been cited earlier, the starting point, instead of the 24 months adopted by the Deputy Judge we would regard a year as appropriate. The Deputy Judge was correct in giving credit of a third by way of discount for the plea of guilty of the applicant. We do likewise, producing a sentence of eight months for the 1st charge.

8. The 2nd charge involves 0.28 gm, the 3rd 76.14 gms, the 4th 117.94 gms. We do not propose to be much involved with the mathematical side of the assessment. Guided by the same principle, on all the matters to the benefit of the applicant, the sentence for the 2nd charge should be a month; similarly, another month for the 3rd; but for the relatively larger quantity in the 4th charge, the sentence should be two months. In consequence, the aggregate of the sentences is a year or 12 months.

9. It is submitted on behalf of the applicant that these offences were closely related. This Court sees the incidents as separate transactions in which the given quantities of herbal cannabis were supplied to the undercover policeman. Sentences should run as ordered by the judge, consecutively. In conclusion, the overall sentence of 28 months passed by the Deputy Judge would be reduced to a sentence of a year or 12 months.

10. We allow the application and treating the application as the appeal proper, we allow the appeal, set aside the sentence of the Deputy Judge and substitute therefor a sentence of 12 months.

Representation:

Mr Graeme Mackay inst'd by the Director of Legal Aid for Applicant

Mr Derek Pang APCC (Ag.) of Crown Prosecutor for respondent