Chan Chi-ming v. The Queen

CACC001167/1978

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Coram: Roberts, C.J., McMullin, J.A., and Trainor, J.

Date of Judgment: 11 September 1979

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JUDGMENT

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Present "tariff" for possession for unlawful trafficking

1. On the 9th August, 1979, Chan Chi-ming appealed against a sentence of five and a half years imposed upon him by a District Court Judge, for the offence of possession for the purpose of unlawful trafficking of 146 grammes of a mixture containing 47.7 grammes of salts of esters of morphine.

2. On the 9th August we gave leave to the applicant to appeal against this sentence and reduced it from five and a half years to three and a half years, on the ground that a sentence of five and a half years was substantially in excess of the usual sentence (or "tariff" to use a commonly employed phrase) for unlawful trafficking in amounts of this nature.

3. We indicated, when allowing the appeal to the extent stated, that we would consider whether we should not restate, for the guidance of judges and magistrates, the general level of sentences which should be imposed for the offence of unlawful trafficking in dangerous drugs.

4. We do not consider it necessary to consider the many appeals which have come before this court in recent years on the subject of sentences for this offence. We need only mention those recent cases which have prescribed the tariff for this offence in general terms.

5. In Chu Yiu-wai v. R.⁽¹⁾ Pickering, J.A., delivering the judgment of the court, commented as follows:-

"We have previously said that where large quantities of drugs are involved, a mathematical comparison of sentences imposed in other cases based upon the quantity of drugs involved in each case is not very realistic. Where however the quantity is relatively small some such comparison may not be without value. Mr. Sanguinetti was able to refer us to the case of Leung Kwok-fai and The Queen (Cr. App. No. 529/76) where possession for trafficking in a mixture of 107 grammes resulted in a sentence of five years' imprisonment being set aside and substituted by one of three and a half years. So far as we are aware the normal sentence for possession for trafficking in very small amounts of drugs is in the region of two or two and a half years and the former is, we think, the appropriate sentence in respect of the first charge whilst the latter is deserving of three and a half years those sentences to be concurrent."

6. It is to be noted that the sentence of two years on the first charge was imposed for possession of 3.1 grammes of a mixture containing O.8 of a gramme of salts of asters of morphine. The sentence of three and a half years on the second charge was imposed for possession of 56.5 grammes of a mixture, containing 11.8 grammes of salts of esters of morphine.

General Considerations

7. We think it may be useful for the guidance of magistrates and judges to deal with some of the matters briefly which should be considered when an appropriate sentence for this offence is being imposed.

8. First. The quantity of the drug in the possession of the accused, which is the most important single factor in determining the proper sentence.

9. Second. It is the quantity of the mixture which should be looked at, rather than its content. This is because it is the mixture which is sold to the consumer.

10. Third. The type of drug. Save where we make it clear that we intend otherwise in the course of this judgment, we are dealing with "hard drugs", that is to say morphine, heroin and barbiturates. The tariff sentences for opium should be substantially lower - unless there is evidence that the opium was to be converted into a hard drug.

11. Fourth. Mitigating factors. Trafficking in dangerous drugs, and possession for this purpose, are offences of the utmost gravity.

12. We need not elaborate upon the appalling social and family consequences of the abuse of drugs. In our view, those who take part for gain in drug trafficking can expect, and should receive, no mercy from the courts.

13. Therefore, the fact that the accused has a clear record will do little to reduce his sentence, though assistance to the police and a plea of guilty may. A bad criminal record, and particularly one in which previous drug offences appear, will be a factor which the court should take into account and will usually result in a higher sentence than in the case of a man with a clear record.

Future level of sentences

14. An examination of the cases during the past few years seems to indicate that there has been some increase in the general level of penalties imposed for this offence. We can only speculate that this may have been one of the factors in the reduction in the number of convictions during recent years.

15. In offences of this nature the main considerations must be the punishment of the offender himself and the deterrence of others who might be minded to take part in this lucrative and wicked trade.

16. The statistics of convictions for this offence during recent years are as follows:

17. In 1976 1,924 persons were convicted of this offence, in 1977 1,220 and in 1978, 967. The figures for the first half of 1979 are likely to be similar for those of 1978.

18. Thus while the offence remains common, it appears to be less prevalent than before. There does not, therefore, appear to be a case for a general raising of the level of tariff, on the ground that there is any increase in the numbers of offences of this nature.

19. It may perhaps be objected that in attempting to prescribe a tariff for this offence, we are interfering improperly with the discretion of courts of trial. We do not think so, for the following reasons -

20. This court has not attempted previously to indicate what it means by "very small" amounts, though an examination of previous appeals suggests that quantities of up to about 30 grammes fell within this description. The tariff for such amounts has been from two to two and a half years.

21. For quantities above 30 grammes, the tariff seems to be three to four years, if the total does not exceed 150 grammes.

22. Above this amount, sentences of seven to eight years have been approved as proper for cases involving perhaps a kilogramme or more.

23. The intervening gap, between 150 grammes and 1,000 grammes would seem to attract a tariff of four to seven years.

24. It is proper that, where very small quantities are involved, allowance should be made for the possibility that the accused may be an addict himself, selling on a small scale in order either to gain sufficient money to satisfy his own needs, or to be supplied with drugs for his own consumption in lieu of payment.

25. In such circumstances, the allowance which can be made for his own addiction, with the suffering which it brings, is reflected in the range of two to two and a half years.

26. However, once the quantity exceeds that within the "very small" category (up to 30 grammes) all quantities should be regarded as serious. The degree of seriousness must vary sharply with the quantity involved, even though it may be a matter of fortune as to the amount found in the possession of a trafficker; indeed if he is a regular trader in drugs, the amount in his possession may vary sharply from day to day.

27. We suggest, therefore, that there should be four categories of cases depending upon the quantity involved; very small, small substantial and very substantial.

28. Very small, i.e. up to about 30 grammes. We suggest a range of two to three years.

29. Small quantity (about 30 to 150 grammes). A range of three to five years.

30. Substantial (about 150 to 1,000 grammes). A range of five to eight years.

31. Very substantial (above 1,000 grammes). From eight to twelve years, save in cases of an unusually serious nature.

Representation:

Kotewall (D.L.A.) for appellant

Hawkes for the Crown/Respondent

(1) Crim. App. No. 282/78