Yuen Chi Mo and Others v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.461 OF 1972 ________________________
Coram : Rigby, C.J., Huggins and McMullin, JJ. Date : 19th January 1973. ________________________ JUDGMENT ________________________ Rigby, C.J.: 1. It is a matter of personal regret to me that I should find myself unable to agree with my brother judges as to the appropriateness of the sentences to be imposed, or which have been imposed, in this case. 2. Although, in fairness to the learned judge, he has given his reasons for imposing, in regard to each offender, the same sentences of seven years’ imprisonment, this was, in my view, essentially a proper case for the scaling down of the sentences imposed and not a case in which each one of the convicted persons should have been sentenced to the same term of imprisonment. 3. In so far as the second appellant is concerned, the 68 year old female, I agree that the sentence of seven years’ imprisonment was entirely appropriate. In March 1967, she was convicted in the Supreme Court of precisely the same type of offence – possession of dangerous drugs – and sentenced to five years’ imprisonment. She was released from prison with full remission of sentence on the 6th July, 1970. She was convicted of this further offence on the 7th February, 1972. It must surely be clear beyond doubt that she committed this further offence with her eyes wide open, both as to the seriousness of the nature of the offence itself and the likelihood of a heavy sentence in the event of her being discovered, prosecuted and convicted. It was a calculated risk which she chose to take and she must pay the consequences. Counsel, in arguing her appeal against sentence, referred to her age – 68 years. The learned judge himself described her as “an old lady”. In imposing sentence, I have no doubt whatsoever that the learned judge took her age into consideration and that the sentence might well have been substantially heavier but for that factor. I would have no hesitation in dismissing her appeal. 4. The position with regard to the three other appellants is substantially different: all three of them have clear records and have never been in trouble before. That, in itself, in my view, is a very relevant factor which calls for a clear and substantial distinction between the sentence imposed upon the second appellant and upon the three other appellants. 5. Turning first to the case of the first appellant. He is a young man aged 20. He came here, together with his elder brother, in October 1969, apparently swimming across from mainland China. Since his arrival here he has led a hand-to-mouth existence, taking odd jobs when and where he could get them. According to his own statement, as put before us by counsel, during this period he came to know a man whom he describes as “Ah Hong”. During a time when he was unemployed Ah Hong approached him and offered him employment as a delivery boy. He was employed in delivering what Ah Hong described as “medicine” and which he himself had first genuinely believed was medicine. Later, he came to realize that what he had believed to be medicine was, in fact, dangerous drugs and he attempted to withdraw from his employment, but Ah Hong made it clear to him that he was now too deeply involved to be able to withdraw. When later arrested by the police for possession of dangerous drugs he at once admitted his offence and took the police back to the flat in which the three female appellants were found and in which a further substantial quantity of dangerous drugs were found. He alone, of all the accused, pleaded guilty to both charges – possession of drugs found upon him at the time of his arrest and joint possession of the drugs subsequently found in the flat to which he himself took the police. Evidence was given at the trial that the lease of the flat was in his name. The flat was a relatively large and comparatively well-furnished one. It must surely have been apparent to anyone conversant with the circumstances of the letting of that flat that this young man was in no position to lease the flat and certainly in no position to pay the rent and that he was clearly a “front” for someone else. All the circumstances of the case point clearly to the fact that this appellant was simply being made use of. 6. Upon the original hearing of this appeal we adjourned the case in order that we might have before us probation officers reports or Social Welfare reports in respect of the appellants, and a further report from the Commissioner of Prisons as to whether or not the second appellant was suitable to be sent to a training centre. Those reports are now before us. In his report the Commissioner of Prisons expresses the view that the nature of this particular offence – possession of drugs for the purposes of trafficking – is such that he does not consider the present appellant suitable for detention in a training centre. That is a view which, although not binding upon any court, is nevertheless a matter which, as Mr. Caird, Crown Counsel, puts it, should not lightly be disregarded by a court. The Commissioner of Prisons may, for good reason, regard young persons found in possession of drugs in circumstances which raise the clear inference that such possession was for the purposes of trafficking in those drugs, as a security risk in a training centre. The probation officer’s report on the second appellant is unusually and uncharacteristically unhelpful in that he appears to have confined his inquiries to the background and circumstances of the appellant without expressing any view as to his character and personality. Section 109A of the Criminal Procedure Ordinance expressly provides that:–
7. Despite the obvious seriousness of this type of offence, bearing in mind the express provisions of the above section, the actual circumstances of this case and the fact that this appellant has a clear record, I would have considered a training centre order appropriate were it not for the report made by the Commissioner of Prisons. In those circumstances, although there is no doubt in my mind that such a sentence is unlikely to be of any beneficial, rehabilitative or deterrent value to the offender himself, I would reluctantly take the view that the appropriate sentence in his case is one of three years’ imprisonment. 8. Turning now to the third and fourth appellants, who are sisters. The fourth appellant is a woman aged 30. She has a clear record and has never been in trouble before. She is a married woman separated from her husband. Like all those concerned in this case, she comes from a poor family, one of nine children and has had little education. She has a daughter, aged 8, whom she supports. She started work in a garment factory at the age of 15. Bearing in mind, on the one hand, the seriousness of the offence of which she was convicted and, on the other hand, the fact that she has never been trouble before, in my judgment the sentence of seven years’ imprisonment was manifestly excessive and I would reduce it to one of five years. 9. The position as regards the third appellant, the sister of the fourth appellant, is, in my view, an entirely different matter. In my judgment, the sentence of seven years imprisonment imposed on this 20 year old girl was grossly excessive and can in no way be supported. Indeed, Crown Counsel, Mr. Caird, with that sense of fairness which one is entitled to expect, and frequently receives, from counsel appearing on behalf of the Crown, has said that if this appellate court considers that personal circumstances are a valid consideration for making a distinction in sentences impose upon joint offenders, this case provides ample justification for a clear differentiation in such sentences. This appellant is a young unmarried girl aged 20. She has no record and has never been in trouble before. To my mind it would seem a reasonable and proper inference that this young girl must have been, to a very large extent, under the influence of her sister, the fourth appellant, a married woman 10 years’ older than herself. Any lengthy sentence imposed upon a young unmarried woman of this age must surely be ruination of all her prospects in the future. Whilst fully acknowledging the seriousness of this type of offence, I cannot and do not accept that the interests of the community require that this young woman, hitherto of good character, should be sent to prison for seven years or, indeed, anything approaching that term of sentence. She has now been in prison serving her sentence since the 9th June, 1972 – a period of just over seven months. I would reduce the sentence of seven years’ imprisonment imposed upon this appellant to one of twelve months’ imprisonment which, allowing for remission of good conduct, would enable her to be released in a matter of some three weeks. 10. If, indeed, it is to be said that the reduction in sentences which I would make do not adequately maintain the seriousness of this type of offence, then my answer is that the sentence of seven years’ imprisonment imposed upon the second appellant is, in itself, a sentence which illustrates and fully reflects the seriousness with which this offence is regarded by the courts. Bokhary (Lau & Lo) assigned for the 1st Appt. R. Rang (Alexander Tsang & Co.) assigned for 2nd Appellant. Bernachhi, Q.C. & R. Tang (Lau & Lo) for 3rd and 4th Appellants. Caird, C.C. for Crown/Respondent. | |||||||||||||||