Szeto Wah v. The Queen

CACC000805/1983

Trafficking in dangerous drugs - Principles for the imposition of a fine with an alternative of imprisonment - normal tariff.

BETWEEN

Coram: Jones J.

Date: 20th July, 1983.

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JUDGMENT

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1. On the 13th May 1983 the appellant was convicted at the San Po Kong Magistracy of one charge of trafficking in a dangerous drug contrary to Section 4(1)(a) of the Dangerous Drugs Ordinance Cap. 134. He was sentenced to a term of imprisonment for two years and fined $75,000 or in default one year's imprisonment suspended for one year and four months. The learned magistrate did not say whether the sentence in default was to be concurrent or consecutive.

2. The facts reveal that on the 13th January 1983 at about 8.30 a.m. two police officers in plain clothes observed the appellant in the Wah Hing Restaurant at Tung Tau Estate, Kowloon where he was seen to carry out three separate transactions which were suspected to involve the sale of dangerous drugs. The third man who dealt with the appellant was arrested by the two police officers and was found to have in his possession a packet of suspected dangerous drugs.

3. The contents of the packet were subsequently analysed by the Government Chemist and were found to contain 0.19 gramme of a mixture containing 0.05 gramme of salts of esters of morphine.

4. The appellant gave evidence which amounted to a denial that he was selling dangerous drugs. However, the learned magistrate accepted the evidence of the two police officers and convicted the appellant.

5. Originally, the appellant limited his appeal to his conviction, and he was unrepresented when he appeared before me at the hearing. Although I did not consider that the appellant had any grounds to upset his conviction, I was of the opinion that there was merit in an appeal against sentence. Accordingly, I granted the appellant leave to appeal against sentence out of time and legal aid for this purpose.

6. Mr. Bharwaney appeared for the appellant and has been of great assistance to the Court with his well marshalled argument and list of authorities. Mr. Bharwaney submitted that the fine coupled with the sentence of imprisonment was manifestly excessive. Miss Crabtree who appeared for the Crown conceded that the imposition of the fine was wrong in principle. The fine was imposed by the learned magistrate because he was of the opinion that the appellant could afford it although with difficulty and he could find no reason why those who unlawfully traffick in drugs should benefit from their transactions by secreting their profits to be enjoyed after serving their sentences of imprisonment. With these sentiments, I entirely agree. However, the learned magistrate made no enquiry into the means of the appellant as to whether he was in a position to pay the fine. Mr. Bharwaney cited R. v. Millington ⁽¹⁾ an unreported decision of the Court of Appeal in England which is referred to in Thomas Current Sentencing Practice page 9030 where Stephenson L.J. said:

"If a fine is to be imposed with an alternative of imprisonment, there must be a true alternative and not an illusory one."

7. In Yeung Ka Chu v. R. ⁽²⁾ a magistrate imposed sentences of 9 months' imprisonment for dangerous driving causing death; a fine of $1,000 or 4 months' for failing to stop; a fine of $750 or 3 months' for failing to report; a fine of $1,000 or four months' imprisonment for driving without third party risk insurance and 6 months' imprisonment for driving whilst disqualified. The sentences in default were ordered to be concurrent. Huggins J. (as he then was) said in his judgment:

"With respect to him, I do not think that could be right. Where a sentence of imprisonment is imposed in default of a fine and there is a concurrent substantive term of imprisonment of the same, or greater length, the effect is to make nonsense of the fine: the convicted person can decline to pay the fine and he serves no additional term of imprisonment."

8. In R. v. Hui Sum Ping ⁽³⁾ the Court of Appeal upheld a sentence of 4 years' imprisonment passed for possession of 7.375 kilogrammes of raw opium but quashed a fine of $1 million imposed in addition. McMullin V.P. in the course of his judgment said:

"There was no inquiry made by the Judge before imposing the sentence as to the means of the applicant, and a fine of $1 million is clearly wholly unrealistic in relation to the means of a man who is earning something in the region of $57,000 a year. There is clearly no possibility that he could ever have paid such a fine. There is no evidence upon the record of any other resources available to the applicant. We are satisfied that this fine is wrong in principle and therefore that part of the sentence must not stand."

9. In the absence of evidence to show that the appellant had the means with which to pay the fine, this part of the sentence was clearly wrong in principle and manifestly excessive. The penalty in default was meaningless if it was to be concurrent with the custodial sentence.

10. Mr. Bharwaney drew my attention to three appeals relating to sentence imposed in cases of trafficking in dangerous drugs which were heard by Briggs C. J. in 1978. The tariff at that time was said to be between 18 months and 2 years' imprisonment. In Mak Kui Sang v. R. ⁽⁴⁾ where the quantity involved visa 0.3 gramme of a mixture containing 0.1 gramme of salts of esters of morphine and the amount of money involved was approximately $40, a sentence of 2 ½  years' imprisonment was reduced to 18 months.

11. In Au Yeung Ying Leung v. R.⁽⁵⁾ where there was a sale of one packet of dangerous drugs containing 0.1 gramme of heroin, the sentence of 3 years' imprisonment was reduced to 18 months and in Cheung Kwok Leung v. R. ⁽⁶⁾ a sentence of 3 years' imprisonment in respect of an appellant who had four previous convictions for offences involving dangerous drugs was reduced to 2 years' imprisonment. On the other hand O'Connor J. in Li Mok Shun v. R^.(7) increased a sentence of 18 months to 2½ years' imprisonment where the appellant sold dangerous drugs to between 15 and 20 people and had four previous convictions for dangerous drugs offences.

12. I have been informed by Miss Crabtree that the normal tariff adopted in the Magistrates Court in cases of the present nature is between 2 and 2 years' imprisonment. In Chan Chi Ming v. R.(8) guidelines were set out by the Court of Appeal in cases of possession of dangerous drugs for the purpose of unlawful trafficking. Where the quantity involved is up to about 30 grammes, the suggested range is from 2 to 3 years' imprisonment. In my opinion, the appropriate tariff for offences of the present nature should be between 18 months and 2 years' imprisonment.

13. The appellant in this case is aged 29. When he was arrested, he had in his possession $230. He has four previous convictions, but none involving dangerous drugs. As he is a first offender for this type of offence, I consider that the sentence should be at the lower end of the scale particularly as the quantity of dangerous drugs involved was minuscule.

14. The appeal against conviction is dismissed. The appeal against sentence will be allowed by reducing the term of imprisonment from 2 years to 18 months, and the order to pay the fine is set aside.

(1)     3 July 1975

(2)     C.A. 417/1974

(3)     C.A. 403/1983

(4)    C.A. 177/1978

(5)    C.A. 487/1978

(6)    C.A. 114/1978

(7)    C.A. 1021/1977

(8)    C.A. 1167/1978

Representation:

Mr. M. Bharwaney (D.L.A.) for Appellant.

Miss M.A. Crabtree (Legal Department) for Crown/Respondent.