Kwong Kam Fai v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 696 OF 1972

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Coram: Pickering, J.

Date: 15^th January, 1973

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JUDGMENT

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1.  The appellant was, at the time of his offence, a 20-year old Trainee Prisons Officer. He was convicted of possession of what is popularly known as heroin in a quantity sufficient to attract the presumption of unlawful trafficking and sentenced to imprisonment for 2½ years.

2.  A previous appeal against conviction having been dismissed, he now appeals against that sentence, having been granted an extension of time for that purpose.

3.  In the Statement of Findings the learned magistrate, Mr. C.J. Millar, said:

“Traffickers are a menace to society, and the combination of a trafficker and Prison Officer seems to me to be as grave an offence as one could imagine, for the conclusion that the drugs are intended to be taken into Prison for consumption there sounds probable if not inescapable.”

4.  There seems to be little doubt that the assumption that the drugs were intended to be taken into prison for consumption there influenced the learned magistrate in deciding upon the term of imprisonment which he imposed. It was, however, no more than an assumption; it was perhaps a not unreasonable assumption – though it is to be noted that the seizure was made in Wanchai, far from any prison premises – but it was not supported by proof and should not have influenced the term of imprisonment imposed.

5.  In general I am adverse to the mere tailoring of a sentence of imprisonment. There is no fixed schedule of sentence for an offence of this type and, in my view, mere tinkering with a sentence because it is slightly higher than that which the appeal judge would have imposed had the case come before him at first instance, is profoundly discouraging to judges and magistrates in the court below.

6.  In the present instance, however, I am obliged to make a reduction of the sentence which is not very substantial. On the one hand the appellant is entitled to some reduction for the reason that the magistrate apparently took into consideration a matter of suspicion which was not proved, in imposing sentence. On the other hand, at the stage of two years imprisonment the appellant comes up against a solid wall of precedent which, whilst by no means constituting a schedule, does represent a very frequent sentence for this type of offence where the amount of the drug involved is not great. In the present case the amount was 6.2 grammes of heroin. To reduce the sentence below two years would be give the appellant an advantage over many ordinary members of the public convicted of similar offences involving similar amounts of dangerous drugs.

7.  The appeal is allowed and the sentence of 2½ years imprisonment reduced to one of two years imprisonment.

B. Bernacchi, Q.C. & Lawrence Leung (Sousae & Co) for appellant

I.L.K. Marshall, Q.C. for Respondent