Lau Yuen v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 74 OF 1973

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Coram: Pickering, J.

Date: 16^th February, 1973

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JUDGMENT

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1.  The appellant appeals against a sentence of nine months imprisonment imposed after conviction for smoking a dangerous drug.

2.  Upon the facts admitted by the appellant and his two companions there is no possible doubt that they were caught by the police in the act of smoking dangerous drugs.

3.  The charge was most unhappily framed however, alleging that

“you smoked a dangerous drug to wit (i) 1 packet containing less than 0.1 gramme of a mixture containing less than 0.1 gramme salts of esters of morphine. (ii) 1 packet containing 0.1 gramme of a mixture containing barbitone. (iii) 1 tinfoil containing less than 0.1 gramme salts of esters of morphine.”

4.  It is apparent that however esoteric one’s smoking habits may be, one does not smoke packets and tinfoil and a more sophisticated defendant might have pleaded not guilty to a charge nonsensically framed and one which followed the phraseology usually adopted on a charge of possession of dangerous drugs.

5.  The appeal was against sentence only and, whilst in a proper case, it is legitimate to treat such an appeal as an appeal against conviction, there can be no justification for doing that in the present case since, as I have said, there can be no doubt whatsoever that the appellant was in fact surprised in the act of smoking a dangerous drug.

6.  The sentence however like the phraseology of the charge, seems to me to be more appropriate to a charge of possession of dangerous drugs. This hapless appellant had a long list of convictions involving dangerous drugs, going back almost twenty years. His previous convictions for the offence of smoking have ranged from conditional discharge to fines and his sentences of imprisonment for the offence of possession have varied from one day to an isolated instance of ten months. He is 61 years old and is manifestly an addict. In those circumstances it appears to me that the sentence of nine months imprisonment to a charge of smoking as opposed to possession, is unduly high. It is to be noted that as a result of his present offence the appellant was in breach of a bond for which he was fined $100 or one month’s imprisonment in lieu of payment and, for his original offence, which was also for smoking dangerous drugs, he received a sentence of two months imprisonment at the same time from the same learned magistrate. The disproportion between two months for the original offence and nine months upon the present conviction, for an identical offence, is altogether too great. The appeal is allowed and the sentence of nine months imprisonment reduced to one of three months.

Appellant in person.

Lucas, A.P.C.C. for Respondent.