The Queen v. Yeung Ying Kan and Another
Read the full judgment text of CACC 120/1984 on BabelCite. This Court of Appeal judgment was delivered on 30 May 1984 before McMullin, V.-P., Li & Silke, JJ.A..
Criminal law – dangerous drugs – trafficking in dangerous drugs – sentencing – distinction between direct trafficking and possession for the purpose of unlawful trafficking – applicability of CHAN Chi-ming tariffs – relevance of quantity of drugs – aggravating effect of drug addiction – disparity in co-accused sentences. Held, that the offence of direct trafficking in dangerous drugs is more serious than possession for the purpose of unlawful trafficking, and the CHAN Chi-ming sentencing tariffs apply only to the latter offence; therefore quantity alone is not the sole criterion for sentence in a direct trafficking case, but actual selling to the public is the overall consideration. Held further, that the absence of positive evidence of actual trafficking is immaterial both to proof of the offence of possession for the purpose of trafficking and to the sentence to be imposed. The applicants, long-term drug addicts with no prior similar convictions, were observed selling small packets of dangerous drugs at a cooked food stall, with a total mixture of 16.66 grammes (5.06 grammes of morphine salts/esters) recovered from the stall and a nearby meter. The court held that their drug addiction was an aggravating rather than mitigating factor, as they were aware of the hardship caused by drugs yet chose to make them available to others. Although the trial judge drew a one-year distinction between D1 (4 years) and D2 (5 years) on the basis of relative activity, the Court of Appeal found no real distinction between them and noted D1 was fortunate to have received a lesser sentence. The sentences were considered light but not so low as to warrant intervention, and leave to appeal was refused.
Legal issues: Whether CHAN Chi-ming tariffs apply to direct trafficking as opposed to possession for the purpose of unlawful trafficking · Whether the trial judge's distinction in sentence between the two applicants was justified
Outcome: Applications for leave to appeal against sentence refused. The court indicated the sentences were light but not so low as to warrant interference; leave to appeal was refused.
Cited by 1 case
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CACC000120/1984 [Sentence : Trafficking in dangerous drugs : More serious than possession for the purposes of unlawful trafficking : CHAN Chi Ming tariffs not applicable.]
BETWEEN
_______ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 30 May 1984 __________ JUDGMENT __________ Silke, J.A.: 1. The two applicants were charged in the District Court with trafficking in a dangerous drug. After the evidence of four prosecution witnesses had been heard they both pleaded guilty to that charge. YEUNG Ying-kan (Dl) was then sentenced to a period of four years' imprisonment and LAM Chuen (D2) was sentenced to a period of five years' imprisonment. 2. They now seek leave to appeal against those sentences. 3. The prosecution evidence was to the effect that a cooked food stall outside No. 10, North Point Road was kept under observation for a period of time on the 12th December 1983. During that time both D1 and D2 were present. They were both seen taking packets from the top shelf of the stall and passing them out to persons who came to the stall. They were both seen going to a nearby electric storage meter from which they removed other packets to replace those taken from the shelf. 4. One of the persons who had approached them was himself apprehended and found to have a packet upon him. The packet contained dangerous drugs and the customer had given $30 for his purchase. 5. When the police moved in for their arrest there were twelve remaining packets on the shelf and twenty two packets still in the electric storage meter. These were all small packets. The total weight of the mixture of dangerous drugs found in these packets was 16.66 grammes and it contained 5.06 grammes of salts of esters of morphine. 6. In his very lengthy Reasons for Sentence the trial judge, having made reference to CHAN Chi-ming v. The Queen(1), went on also to refer to two unreported Criminal Appeals in 1978 - cited in Addison's Digest. In the first, the Court of Appeal had reduced a sentence of three years' imprisonment to two years on a trafficking charge which involved the selling of one small packet of drugs. In the second, a sentence of eighteen months' imprisonment was undisturbed for the sale of 0.3 gramme of a mixture containing 0.1 gramme of salts of esters of morphine. He went on to say that the quantity here was fifty times more than was mentioned in those cases. 7. He then went on to make a distinction as between the offence of possession for the purposes of unlawful trafficking and the offence of trafficking. From this stems this application. 8. It is the contention of Mr. Nguyen, who appeared for both applicants in this Court, that there is no difference between these two offences and that one should look to the tariffs set out in CHAN Chi-ming(1) so as to evaluate the proper sentence to be passed. 9. In support of this contention he has referred us to WONG TIM v. The Queen(2) (unreported) where Huggins, J., as he then was, made reference to the trial magistrate in his Reasons for Sentence stating that he found, in the defendant's favour, that there had been no positive evidence of trafficking - the charge there being one of possession for the purpose of unlawful trafficking. 10. Huggins, J. then went on:
11. Later, in the course of the judgment, Huggins, J. said:
12. We think that all Huggins, J. was there doing was saying, and of course quite rightly, that proof of the offence of being in possession for the purpose of unlawful trafficking did not require any evidence of actual trafficking itself. In that sense we accept that absence of trafficking evidence is immaterial to the sentence to be imposed in such case. That having been said, we do not think this authority to further Mr. Nguyen's argument. 13. We have also been referred to another matter heard before a Division of this Court: The Queen v. LAW Chi-keung & Another(3). There the Court, of which two of the members of the present Court were part, was asked by Counsel appearing for the applicant to express views as to whether or not the offence of trafficking could be regarded as more serious than that of possession for the purpose of unlawful trafficking. It declined to do so in the particular circumstances of that case. 14. Mr. Nguyen had sought comfort from various expressions used in the judgment in CHAN Chi-ming(1). There was reference to: "Trafficking in dangerous drugs, and possession for this purpose, are offences of the utmost gravity." and there was a further reference to the general level of sentences which should be imposed for the offence of "unlawful trafficking" in dangerous drugs. In the light of these references he seeks to persuade us that the tariffs in CHAN Chi-ming(1) have application not only to offence of possession of dangerous drugs for the purpose of unlawful trafficking but also to direct trafficking and, further, that we should here consider the quantity of drugs found as being the criterion upon which sentence should be based. This would be the "very small" category for which CHAN Chi-ming(1) suggested a tariff of two to three years. 15. We are not so persuaded. The charge of possession for the purpose of unlawful trafficking frequently arises where the quantity falls into that category which raises the presumption in the Dangerous Drugs Ordinance and covers the storekeeper, the courier and the conveyor of these substances. It is this offence alone with which CHAN Chi-ming(1) was concerned. The passages prayed in aid by Mr. Nguyen are simply short hand references to that offence. 16. Trafficking, on the other hand, is the end result of the activities of the storekeeper or courier and it is even more serious than possession for the purpose of unlawful trafficking. It cannot be right, in our view, that the quantity found can be the only criterion upon which sentence is based even though the maximum sentence provided by the legislation is the same for each offence. It is undoubtedly a relevant factor for the consideration of a sentencing judge but the overall consideration must be the actual selling of these drugs to the public. The internal scale within the maximum permitted must be graduated to the nature of the offence charged. We do not therefore think that the tariffs of CHAN Chi-ming(1) are applicable where the charge is that of direct trafficking. 17. Here, both the applicants were long term drug addicts. D1 is 36 and D2 is 38. Neither had been convicted of a similar offence in the past. While it was urged in the Court below that their drug addiction was mitigating, we think it to be more of an aggravating factor in that these men were fully aware of the hardship and of the suffering caused by drugs but were quite prepared, for their own purposes, to make such drugs available to others. 18. The trial judge drew a distinction between them on the apparent basis that one was more active than the other. This seems to stem from the number of times each was seen to sell. We do not think this to be a real distinction and D1 may consider himself lucky that his sentence was a year less than that of D2. 19. These were quite deliberate offences of a very serious nature. We doubt if we would have intervened had the sentence on each been that of six years in the circumstances here. However, we do not think the sentences imposed to be so low as to warrant our interference, though they were undoubtedly light. In the event we would do no more than refuse the leave applied for.
Representation: P. Nguyen, Esq. assigned by DLA for both applicants. N.T. MacPherson, Esq. for Crown/Respondent. |
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