Ngan Ping and Another v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.36 OF 1973 -----------------
----------------- Coram: Leonard, J. in Court Date: 7th February, 1973 ----------------------------- JUDGMENT ----------------------------- 1. This is a case which has caused me considerable anxiety. Both appellants had pleaded guilty in the court below to trafficking in dangerous drugs (heroin) on the 15th of December 1972 outside the London Theatre in Nathan Road. The purchaser of the drugs in question was a young girl, a student of 17, who had herself been found in possession of drugs. In the course of the investigation into her case she apparently quite willingly volunteered to go to the place in question and obtain drugs there. As a result of this, she asked the two appellants to sell a small quantity of drugs which they did. 2. The appellants are rickshaw coolies and the first appellant is aged 61 while the second appellant is aged 49. It is quite clear from their records that both appellants are themselves heroin addicts. One of the appellants has nine previous convictions including one conviction for trafficking while the other appellant has twelve previous convictions for possession of heroin. 3. I adjourned this case for further information as to the prevalence of this offence in the particular localty. Crown Counsel has been able to give me information regarding two cases which occurred in Nathan Road both of which involved rickshaw goolies and young persons. One aged 59 and one aged 54. 4. In this particular case, the purchaser of the drugs was a young girl. I do not pay particular attention to that because although she was apparently an herself she was sent (albeit willingly) by the police to buy in that vicinity. I am, however, assured by Crown Counsel that this is a popular area for students to obtain drugs. Both appellants have put forward no real grounds in mitigation, but they have asked for a chance and the first appellant clearly relies upon his age and his plea of guilty as justifying some reduction in sentence. With this plea I would tend to sympathize if it were not for the fact that the sale was at an area where students commonly go to obtain drugs. The learned magistrate who is of very great experience in the Colony and elsewhere saw fit to impose deterrent sentences 3 years imprisonment in the case of the first appellant and 2½ years imprisonment in the case of the second appellant. I have given most careful consideration to the matter and I am not convinced that the sentences are manifestly excessive in all the circumstances of the case. It is true that the learned magistrate made no allowances for the pleas of guilty but he did so advisedly in order to stress the deterrent nature of the sentences which he imposed. People who traffick in dangerous drugs cannot expect to have their appeal for leniency given any particular sympathy by this court. 5. In a normal case I would strongly deprecate the use by the police of a young student as an agent provocateur. This, however, was not an ordinary case since the girl had, I am assured by Crown Counsel, earlier purchased drugs in this locality. In any event I doubt if the manner of detection of the offence is a matter which I should take into account in considering sentence. The appellants were clearly willing sellers of the drugs. The fact that they were perhaps driven to this course by their addiction is immaterial. Addicts who form and essential link in the chain by which dangerous drugs are distributed cannot in my view rely on their addiction as a mitigating factor. So to regard it would encourage distributors to use addicts as their agents. 6. The sentences are undoubtedly severe but I am not convinced that they are manifestly excessive and accordingly I dismiss these appeals.
Both appellants in person Eric Li, S.C.C. $ A.M. Niamatullah for Crown/Respondent |