Ngan Tang v. The Queen
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CACC000830/1971 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION ----------------- CRIMINAL APPEAL NO. 821 OF 1971
----------------- CRIMINAL APPEAL NO. 830 OF 1971
----------------- Coram: Leonard J. in Court. Date of Judgment: 21 December 1971 ----------------- JUDGMENT ----------------- Leonard J.: These two cases came before me on the same day and as they were both appeals from sentence only on charges of trafficking in dangerous drugs, I thought it is well to deal with them together, particularly as the sentences differed widely and each was imposed by a learned Magistrate of great experience in this and allied jurisdictions. In Criminal Appeal No. 821 of 1971, the appellant appeals against sentences of two years imprisonment for trafficking in dangerous drugs and one year consecutive for possession of further smaller quantities of dangerous drugs (heroin and barbitone). He pleaded guilty before the learned Magistrate and admitted sales to the same person - a member of Her Majesty's armed forces - on thirty to forty earlier occasions. He denied that he trafficked for profit saying that he obtained the drugs as a "favour" for the soldier in question. Aged thirty-three, he had a long list of previous convictions for petty offences including four for possession of dangerous drugs. After sentence, he applied to the Magistrate for a review and logically suggested that since possession was necessary to the offence of trafficking, the sentences should be concurrent. The Magistrate appreciated the point but regarded three years as the appropriate sentence and said that he had achieved this appropriate sentence by making the two consecutive. He stated that he, took into account the plea of guilty, but added that had he been empowered to impose a higher sentence he would have considered doing so. 2. In Criminal Appeal No. 830 of 1971 the learned Magistrate took a very different view. It must have been known to the police in that case that trafficking was going on for the appellant was caught by the use of an agent provocateur. In broad daylight in Nathan Road he accepted an offer made by a policeman in plain clothes to buy heroin and sold him a somewhat larger amount than that sold in Criminal Appeal No. 821 of 1971. He pleaded not guilty. He was aged forty-six and had five previous convictions including three for possession of dangerous drugs. I was therefore faced with two sentences differing greatly in severity for offences essentially the same in character. There were distinctions but these did not go to the root of the matter and I had some difficulty in differentiating between the two appellants on any matter of principle therefore and having regard to the experience and capacity of the Magistrates concerned I gave the matter most anxious consideration. Fortunately I had the assistance of the D.P.P. Mr. Corbally who pointed out that as a rule charges of trafficking were dealt with by the District Court or by the High Court depending upon the amount of drugs involved. Accordingly no clear "pattern" has yet emerged in the Magistracies as to what was a fit sentence for a person, himself possibly an addict, who engaged in trafficking. Clearly the offence of trafficking is one which the legislature considers to be extremely serious. The maximum evidence that may be imposed for it if it is dealt with summarily is three years imprisonment and, if dealt with by way of indictment, life imprisonment. Mr. Corbally further pointed out and I entirely agreed with him, that dangerous drugs constitute the most serious social problem facing us in Hong Kong. I have come to the conclusion that the sentence of twelve months imposed in Criminal Appeal No. 830 of 1971 was far too lenient, and that there was an error in principle in its imposition. In that appeal when urging me to reduce the sentence the appellant stated that he "made this mistake because I was greedy at the time. I promise not to do it again. I have no work and have to support a wife and children". I could not regard this as a valid reason for reducing or failing to increase a sentence that I considered far too lenient. Immeasureable damage is caused to society by people who traffick in heroin apart altogether from the misery caused to those who become addicts because of the activities of "pushers". The leniency of the sentence may be accounted for by our natural dislike for the use of agents provocateur and it is presumably to this that the learned Magistrate referred when he suggested that the charge might have been better framed under sec. 7(1) (possession for the purpose of trafficking) rather than so trafficking simpliciter but if the use of such agents is ever justified it is merely justified in such cases as this. Without wishing to lay down any general pattern which might be thought binding on Magistrates when faced with cases of trafficking, I considered that the only course open to me in Criminal Appeal No. 830 of 1971 was to increase the sentence so that it should be a real deterrent. however, I took into consideration the fact that by the sale of the drugs the subject of the charge the appellant had, for the moment at any rate, exhausted his supply of dangerous drugs and could not have trafficked further unless he obtained a fresh supply. This alone prevented me from awarding the maximum sentence available to the Magistrate and I considered a sentence of two years and six months appropriate. I therefore allowed the appeal to the extent that the sentence was increased to two years and six months imprisonment. The sentence is to run from the date of conviction. 3. In considering the sentence imposed by the learned Magistrate in Criminal Appeal No. 821 I decided that the sentence on the charge for possession should be concurrent with the sentence imposed on the charge of trafficking. While I sympathize with the Magistrate's view that a sentence of three years was appropriate I consider that he failed sufficiently to allow for the plea of guilty entered by the appellant in Criminal Appeal No. 821 of 1971 and his candour in admitting thirty to forty other sales to the same addict. However the appellant in that case was a younger man and had a worse record than the appellant in Criminal Appeal No. 830 of 1971. Because of this and since the appellant stated in mitigation that he had "learned his lesson" had got rid of the habit of smoking and would start afresh on release from prison I considered that a sentence of two years and eight months imprisonment was appropriate. I accordingly allowed this appeal to the extent that the sentence on the charge of trafficking was increased to two years and eight months and the sentence on the charge of possession was to stand, but I ordered that the sentences should run concurrently from the date of conviction.
Representation: Appellants in person. Corbally, Ag. D.P.P. for Crown. (Oral judgment reduced into writing.) |