Chow Kut Shing v. The Queen
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CACC000903/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.903 OF 1969 -----------------
Coram: Rigby, C.J. Date of Judgment: 2 February 1970 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of the charge preferred against him of possession of dangerous drugs for the purposes of trafficking. He was sentenced to six months' imprisonment and he now appeals against that sentence. 2. He has a long record of eleven previous convictions over the last 16 years for dangerous drug offences. It is sufficient to say that I am wholly satisfied that in so far as the propriety of the sentence is concerned there are no grounds whatsoever for interfering with it. Indeed, if it erred at all it erred on the side of leniency. 3. However, when this case came before me last week the appellant informed me that since his conviction on the 17th November, a fire took place as a result of which his hut was burnt down and his two infant children, aged 9 years and 3 years respectively, were burnt to death. Crown Counsel, through the police officer instructing him, informed me that those facts were correct. I adjourned the case until to-day in order that I might have a full report as to the circumstances of the case and a report from the Social Welfare Officer. That report is now before me. It confirms the truth of what the appellant earlier told me, and I am informed that the Social Welfare Department have been looking after the aged mother, wife and smaller children of the appellant, all of whom were fortunately rescued from the fire. 4. In the particular circumstances of this case, I have no doubt whatsoever that natural justice demands and dictates that the appellant should be released from custody so that he may have an opportunity to see his wife and the rest of his family. It may well be that the purist lawyer would take the view that if the sentence was right in principle and not excessive then it is not for this court to alter that sentence, but it is a matter for the executive to make such commutation of the sentence as might be considered proper. I do not take that view. If the appellant had been a dangerous criminal or a menace to the community in some other way, it might well be that even allowing for the tragic circumstances of this case it would not be for this court to interfere with thesentence, but for the executive to take such action as might be considered proper. The past record of the appellant as a drug addict indicates that he is a menace to himself rather than to the community. It is true that in this case he was convicted of being in possession of dangerous drugs for the purpose of trafficking, but the evidence of trafficking in dangerous drugs only arose against him by reason of the statutory presumption arising from the quantity of drugs found in his possession. Although the quantity of drugs found in his possession was sufficient to give rise to the statutory presumption of trafficking the quantity was, in truth and in fact, of a very small amount. The seriousness with which the magistrate regarded the matter of trafficking is, perhaps, best reflected in the sentence of six months' imprisonment which he in fact imposed; which is the sentence normally given to an offender for simple possession of dangerous drugs. 5. I am fully satisfied that the particular circumstances of this case are such as clearly to entitle me to interfere with the sentence although, as I have said, it is neither manifestly excessive nor wrong in principle. 6. The appeal will be allowed and the sentence reduced to such a period as will enable the appellant's immediate release and discharge from prison. 7. The appellant quite clearly is a habitual drug addict. Since the date of the last hearing I have been in communication with the Society for the Aid and Rehabilitation of Drug Addicts (hereinafter referred to as "S.A.R.D.A.") and Mr. Ch'ien of S.A.R.D.A., who is now present, informs me that despite the appellant's long record of drug addiction, S.A.R.D.A. is prepared to take him if he is willing to become a voluntary patient. The appellant informs me that after he has had an opportunity to see his family, he is ready and willing to accept the offer of S.A.R.D.A. to be given an opportunity to rehabilitate him as a voluntary patient at Shek Kwu Chau. I can only hope and trust that, in his own interest, he will in fact accept that offer and become an inmate at this admirable institution provided by S.A.R.D.A. Representation: Appellant in person. Corcoran, Acting P.C.C. for Crown/Respondent. |