Cheung Sum-kok v. The Queen

CACC000809/1977

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Coram: Pickering, J.A., Leonard & Cons, JJ.

Date of Judgment: 5th October, 1977.

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JUDGMENT

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Pickering, J.A.:

1. This appeal was against a sentence of three and a half years' imprisonment imposed for possession of some 2,337 grammes of prepared opium for the purpose of unlawful trafficking therein. The opium was found concealed in various parts of the appellant's premises when the premises were searched by Preventive Service officers.

2. Mr. Bleach, for the appellant, argued that the courts had always recognised the very real distinction between possession of opium and possession of heroin or other hard drugs and quoted the cases of TANG So v. The Queen⁽¹⁾, SO Wai-hau v. The Queen⁽²⁾ and LI Chi-kit v. The Queen⁽³⁾ all of which undoubtedly support his contention. It is to be noted, however, that in these three cases the amount of opium involved was considerably less than that with which the learned trial judge in this case was concerned. In the first case the amount involved was 227 grammes and the sentence of 18 months' imprisonment was reduced upon appeal to one of nine months; in the second case the amount of drugs does not appear from the judgment of the judge of appeal but was presumably small since in that case a sentence of two years' imprisonment was reduced upon appeal to one of nine months; in the third case the amount involved was 73 grammes and a sentence of 18 months' imprisonment was reduced upon appeal to one of 12 months.

3. Mr. Bleach readily concedes that the appellant, by virtue of the quantity of opium in his possession, does not fall within the area of a nine months to twelve months sentence but on the other hand points out that in the case of WONG Siu-fan v. The Queen⁽⁴⁾ a quantity of 65, 000 grammes of opium drew down a sentence of five years' imprisonment which was reduced upon appeal to four years and urges that if that sentence was appropriate for so large a quantity of opium then three and a half years' imprisonment for possession for the purpose of trafficking of 2,337 grammes is out of line.

4. We are constrained to agree whilst warning that sentence cannot always be correlated to the quantity of drugs involved. However, having regard to the discrepancy illustrated in this case and to the appellant's clear record we allow the appeal, set aside the sentence of three and a half years' imprisonment and substitute a sentence of two and a half years.

Representation:

John Bleach (Gunston & Chow) for appellant.

E.R. Astin for Crown/respondent.

(1) Cr. App. 428/73.

(2) Cr. App. 328/73.

(3) Cr. App. 541/77.

(4) Cr. App. 289/76.