Yuen Chi Mo and Others v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.461 OF 1972

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Coram : Full Court (Rigby, C.J., Huggins & McMullin, JJ.)

Date : 19th January 1973.

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JUDGMENT

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McMullin J.:

1.  I agree with what has been said in the judgment which has just now been delivered both as to its effect and as to its contents generally. The Commissioner in passing sentence evidently took the view that the offence was, in itself, of such a serious nature that there was no justification for making any distinction between the four appellants, all of whom had co-operated in the management of an active cell for the dissemination of dangerous drugs. In so far as he based himself on the paramount importance of deterrence in all such cases he was, with respect, clearly right; again it would be impossible for me to say that he erred in principle in concluding that the only appropriate form of punishment was imprisonment. There were, however, fairly substantial differences between the four appellants in respect of age, background and, from the reports now received, in character which were relevant, some of which I think were not given sufficient weight in choosing what was in the nature of a “blanket” deterrent sentence for all four. Serious though the offences were, I doubt that this could be regarded as a case of that utmost gravity which might justify a judge or magistrate when dealing with several accused persons disregarding all save the purely deterrent factor. It is for this reason only that I feel we are justified in interfering with the sentences to any extent whatsoever. The course now proposed by the majority in this court will, I believe, give expression, not perfectly, but to some sensible degree to the requirements of deterrence and individualisation, interests between which there must always be some degree of tension.

2.  I would like to add that, in my view, the sentences which it is now proposed to substitute for those imposed in the court below on the first and third accused, far from being untoward, are in reasonable accord with the recent trend of sentencing in respect of such offences, both in these courts and in those of the United Kingdom, If youth, because of inexperience, subjection to family influence or the like, is to be regarded as sufficient on its own, or even when allied to clear record and a plea of guilty, to warrant a drastic differentiation as to sentence between several co-accused all of whom have played actual parts in trafficking in or manufacturing dangerous drugs, it is all too likely that those who are concerned with the recruitment of volunteers to this nefarious underground will not be slow to regulate their practice by reference to any such selective clemency. Yet to choose at random cases for the exercise of the court’s compassion on grounds of youth would obviously be unjust. The dilemma is plain : if youth and prior innocence are to be regarded as exceptional mitigating circumstances it should be so in all cases, yet it is just such a principle which carries in it the danger to which I have referred above, a danger which is eloquently highlighted in the judgment of Lord Justice Salmon in Reg. v. Daher^([1]) concerning a sentence of 3 years on a youth of 19 for importation of cannabis. Again, youth and clear record certainly do not appear to have been regarded as noticeably mitigating factors in the recent English case of Reg. v. Owens and Weinberger, a brief account of which may be found at page 295 of the Criminal Law Review for 1972. In that case two Americans, aged 20 and 23 respectively, who were students at an English university, pleaded guilty to possession and importation of drugs. They were found in possession of 1060 grammes of cannabis and the elder of the two was, in addition, found in possession of 100 tablets of L.S.D. Correspondence in possession of the younger man showed that he and his companion proposed to set up a scheme with another person for having cannabis sent to the U.S.A. in return for L.S.D. which was to be sent to England. The younger man was sentenced to 6 years imprisonment and elder to 5. It was said in that case that the profits available from this kind of traffic were so substantial that the courts would not be doing their duty if they failed to impose such sentences as would make it clear that this kind of crime would not be allowed to pay. When one considers that the drugs involved in the present case, in quantity, in value and above all in their nature and the disastrous consequences thereof, greatly exceed the subject matter of the charges in the English case and when one has regard also to the vastly greater size of the drug problem in Hong Kong generally, I do not think it can be said that the scale of the sentences now proposed can be regarded as in any way excessive. For these reasons I am in agreement with the order which has been proposed by my brother Huggins.

([1]) 53 C.A.R. 490.