Suvit Utthayanwatana and Another v. The Queen

CACC000119/1982

Dangerous Drugs - sentence - mixture containing esters of morphine - guidelines in regard to quantum laid down in CHAN Chi-ming to be followed unless reasons for imposing heavier (or lighter) sentences are shown - if evidence adduced to show that mixture seized is unlikely to be sold to consumers in that form but is likely to be converted into a considerably greater quantum of mixture commonly consumed heavier penalties may be imposed exceeding the indicated "bracket"

BETWEEN

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Coram: McMullin, V.-P., Li and Silke, JJ.A.

Date: 23 April 1982

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JUDGMENT

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McMullin, V.-P. :

1. The applicants are Thai nationals who renew before this court applications for leave to appeal against sentences of 7 years imposed upon them in the district court in relation to charges of possession of dangerous drugs for the purpose of unlawful trafficking.

2. Mr. Bleach, who appears for both applicants, asks us to consider a single ground of appeal which is not the ground originally considered by the single judge and in relation to which he refused the applications.

3. The original ground was that the judge had not given sufficient credit to the applicants for their pleas of guilty. Mr. Bleach concedes that there is nothing in that. He asks instead that we should consider a point now for the first time put before us and to that I will come.

4. The applicants were arrested at Kai Tak, presumably upon information in the possession of the preventive officers. After arrest, they were each physically examined and discovered to have within their persons condoms containing a quantity of the forbidden drugs.

5. The 1st applicant was found to be in possession of 129.21 grammes of a mixture containing 98.83 grammes of esters of morphine; the 2nd applicant of 133.21 grammes of a mixture containing 107.31 grammes of esters of morphine.

6. In the circumstances, as counsel concedes, there was very little weight to be attached to their pleas of guilty. However, Mr. Bleach argues that the judge, in passing sentence, did not have his attention directed to the guidelines laid down by this court in CHAN Chi-ming v. The Queen⁽¹⁾. He points out that the quantities referred to by the court in CHAN Chi-ming⁽¹⁾ insofar as they are relevant to the circumstances of the present case would place the quantity of drugs discovered within the persons of both of these applicants in the "tariff" bracket of 3 to 5 years rather than that of 5 to 8 years which is applicable for quantities between 150 and 1,000 grammes. CHAN Chi-ming⁽¹⁾ establishes the important point that the relevant quantum is that of the mixture not that of the base drug.

7. We are satisfied that there is substance in this objection. CHAN Chi-ming⁽¹⁾ was a case concerned with salts of esters of morphine and not with esters of morphine. It is likely that a mixture predominantly consisting of esters of morphine (a drug of a purer quality than salts of esters of morphine) will be further treated and combined with other substances resulting in a mixture, consumable by consumers in the market, of much greater quantity than the original mixture containing esters of morphine.

8. The same could be true of an original mixture containing salts of esters of morphine; but given that the original mixtures were in each case identical in weight and in the proportion of the base drug to the whole, the mixture with the purer base could be expected to supply the greater quantity of the saleable product.

9. Heroin is commonly referred to as diacetylmorphine hydrochloride. It is unnecessary to become involved in merely chemical distinctions in this matter. In section 46 of the Dangerous Drugs Ordinance, in which the relevant presumptions are set forth, we find in paragraphs (d) to (e) of that section, a variety of substances referred to including morphine, diacetylmorphine, a salt of morphine or diacetylmorphine, an ester of morphine, and a salt of an ester of morphine. The quantities of any one of those substances capable of raising the presumptions within that section are precisely the same for each of the stated substances.

10. In CHAN Chi-ming⁽¹⁾, the court said that the tariff it was laying down was intended for the guidance of the courts and was to be generally applied. The court added:

"It is not intended to prevent them from imposing greater or lesser punishments in the special circumstances of any case."

11. Mr. Bleach points to the fact that there was not in this case any evidence adduced before the court prior to passing sentence to indicate that the esters of morphine, which form the bulk of the mixture in the possession of the applicants, was unlikely to be sold to consumers in that form but would be used to produce a consumable mixture which would be in quantity considerably greater than the original mixture containing esters of morphine. Such evidence, he concedes, might explain and justify these sentences. He points out that it is customary in cases of this kind, where a sentence is being considered, for the Crown to give the court information as to the market value of the drugs which had been seized. That is commonly done merely by counsel giving a statement to the court, but where there is a challenge to it, of course, evidence has to be produced.

12. We think that this is a valid point. Where the mixture laid in the charge is such that it is capable of producing and is likely to be used to produce a very much larger quantity of the substance commonly consumed by consumers it would be unrealistic to inhibit courts from passing sentences commensurate with the real harm likely to result on the ground that the quantum of the substance seized fell within the bracket which would be appropriate to that quantum if it were the ultimate commercial mixture. There should, however, be some evidence, in the absence of agreement between counsel on the matter, to demonstrate how much of the ultimate material is likely to result from the mixture actually seized. Where such evidence is available and is produced, the effect will be that the court can consider the possible damage to the public from the quantum which would ultimately result from the treatment of the mixture seized. That would, in effect, have the result that the bracket into which the offence should be placed would be higher than the bracket applicable to the actual quantity of the drug seized. There should also be evidence that the mixture seized is either incapable of being, or at least very unlikely to be, sold directly for consumption. Such we understand, would be the case where, as here, the mixture consists mainly of esters of morphine. In the absence of such evidence, the CHAN Chi-ming⁽¹⁾ guidelines should be followed unless there is some other aggravating factor, but where such a factor exists it is advisable that mention should be made of it in passing sentence.

13. We cannot see that there is any injustice, where evidence as to ultimate quantum is available, in sentencing a mere courier who has in his possession the purer drug to a higher sentence than another courier, even one arrested at the same time, who has in his possession a drug not of the same purity and therefore not capable of being converted ultimately into an equal quantity of consumable material.

14. The damage to the public is obviously the matter of paramount consideration in dealing out the very heavy sentences which drug offences commonly attract. The mere fact that a courier has taken his particular drug blindly without knowing that it is a purer substance and therefore one capable of inflicting ultimately greater damage upon the public is not a matter which should be held in mitigation to any considerable extent in his case.

15. Mr. Lyons for the Crown has suggested that the judge, in passing sentence, may have drawn this distinction between esters of morphine and salts of esters of morphine, or some similar relevant distinction, in referring to the fact that the drug seized was "almost pure heroin". We think that was simply a reference to the fact that the quantum of esters of morphine in each case forms the vastly greater bulk of the mixture within the condoms retrieved from the persons of the applicants.

16. There was no evidence given in the present case, nor any statement by way of agreement between counsel, to indicate that the esters of morphine would inevitably be converted into a substance of considerably greater quantum than would be the case if the mixture seized had been composed mainly of salts of esters of morphine. We think, therefore, that, in selecting his bracket, the trial judge was not directing himself upon the proper principles inasmuch as it does not appear that the decision in CHAN Chi-ming⁽¹⁾ and in particular in reference to "mixture" was brought to his attention. Without evidence of the kind we have indicated or any other special factor affecting the offence there does not seem to be any good reason for exceeding the guideline limits in the present case.

17. Counsel for the Crown has not sought to adduce evidence on this matter and for the reasons given by Mr. Bleach, we think it would not be advisable to call for it at this stage. We, therefore, grant the application and treating the hearing of the application as the hearing of the appeal we allow the appeal and set aside the sentences of 7 years, substituting therefor sentences of 4 years in respect of each of the applicants.

18. In view of what has been said, it would seem logically to follow that the time lost by direction of the single judge should be restored.

(1)    (1979) H.K.L.R. 491

Representation:

Mr. J. Bleach instructed by Haldane Midgley & Co. for both appellants

Mr. D. Lyons for respondent/Crown