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 ________________________ BETWEEN
________________________ Coram: Rigby, C.J., Huggins & McMullin, JJ. ________________________ JUDGMENT ________________________ Huggins, J.: 1.This is an appeal against sentences of seven years’ imprisonment passed upon each of the Appellants on a charge of possession of dangerous drugs for the purpose of unlawful trafficking and upon the 1st Appellant on an additional count for a like offence, the two sentences in his case being concurrent. 2.The 1st Appellant was arrested in the street. He was carrying a cardboard carton containing 2,530 packets and these in turn contained a total of 1,708.6 grammes of a mixture which included 721.9 grammes of salts of esters of morphine. He then took the police to a flat where the other three Appellants were found and arrested. In the flat were a further 2,500 packets containing a total of 5,542.9 grammes of a mixture which included 2,564.3 grammes of salts of esters of morphine. It was apparent from the paraphernalia found that the flat was being used as a distribution centre and the 1st Appellant was no doubt acting as a courier at the time of his arrest. 3.The 1st Appellant was just under twenty years of age at the date of the trial, the 2nd Appellant a woman of 68 and the 3rd and 4th Appellants were sisters aged 20 and 30 years respectively. It will thus be seen that two of the Appellants were persons to whom s.109A of the Criminal Procedure Ordinance applied. On behalf of the 1st Appellant the first ground of appeal is that the learned judge did not consider whether any form of punishment other than imprisonment was appropriate, but he expressly said:
I cannot believe that he made these observations without any reference to s.109A, particularly as his attention had very clearly been drawn to the section by counsel in a plea in mitigation. In fairness to counsel it must be added that he did not seek to support the ground of appeal as framed but rather to argue that the judge was wrong to find that there was no other appropriate method of dealing with the 1st Appellant and that in making his finding on this point the judge was wrong to have regard to the deterrent effect on others of the sentence he was about to pass. Counsel points out that the Legislature has seen fit to except some offences from the operation of s.109A, including some offences under the Dangerous Drugs Ordinance, and submits that that is an indication that the Legislature intended deterrent sentences to be available only in respect of excepted offences. I cannot accept that contention. It must be borne in mind that when s.109A was originally enacted there were no exceptions, and for that reason alone I do not obtain any assistance in interpreting the section from the subsequent legislation. Apart from this it seems to me that the form of the proviso does not support the contention made on behalf of the 1st Appellant: there is nothing to show that the Legislature intended to remove from all consideration by the court, in a case involving an excepted offence, the deterrence factor. I cannot accept that “the duty of the court is to sentence the offender and not the offence” if by that is meant that the court is not to pay full regard to the nature of the offence committed and to its possible effects upon the public weal. In every case the court must have regard to all relevant factors. In some cases the circumstances will require that more weight be given to a particular factor than in others and there may be cases where that factor is of such minimal weight that it cannot affect the ultimate decision. In Attorney General v. WONG Chi-fai Application for Review No.8 of 1972 I recently said:
In my view in cases like the present, where large quantities of dangerous drugs are involved, deterrence must usually be the predominant factor but I do not think that in this particular case the sentences should not reflect at all the personal circumstances of the offender. In the case of a young offender convicted of a non-excepted offence the court is bound by the statute to give special weight to the desirability of keeping him out of prison. Even so there must inevitably be cases (as is recognised by the wording of s.109A itself) where a sentence of imprisonment is appropriate. It may be appropriate either because of the depravity of the offender, as evidenced by the nature of the offence or by his past record, or because the injury to the public resulting from the offence requires that others shall be deterred. To adopt any other view in cases like the present would be to encourage the practice, already far too common, of employing young persons in the more active side of dangerous drug distribution. The learned judge, with ample justification, took the view that imprisonment was the only appropriate method of dealing with the 1st Appellant (and, incidentally, with the 3rd Appellant) and this appears not only from the words he used but also from the fact that he thought the imprisonment should be for no less than seven years. 4.On behalf of the 1st Appellant two other matters were urged. First it was said that he was an uneducated youth who in 1968 or 1969 came to Hong Kong because his family thought he might better himself here. He undoubtedly found life hard upon his arrival and although he had several jobs he was unemployed at the time he entered the drug traffic. Again, it is obviously those who are down on their luck who are the natural target for enlistment into the drug traffic. It would be inhuman to conclude that that was itself a reason for deterrent sentences were it not for the inhuman consequences of the traffic. It seems to me that these consequences are such that they must inevitably outweigh the mitigating factor of the 1st Appellant’s age. If it is undesirable to send a young offender to prison at all, a fortiori it is undesirable to send him to prison for a long period. However, suppose a young defendant were proved to have taken part in the tying up of even two or three persons and the gouging out of their eyes in return for a payment of money, can it be doubted that he would be sentenced to a long term of imprisonment? Not only must society express its disapproval of such conduct: it must punish it in a manner which may help to prevent a recurrence. Of course the analogy is not complete but I venture to think it is not as invalid as may at first appear and that the very point at which it breaks down indicates the greater rather than the less relevance of the deterrent factor where trafficking in drugs is under consideration. I recognise that a person who is offered drugs is usually in a position to decline them. Even so there are those whose will to resist the temptation to accept is weak, whether as a result of existing drug addiction, inherent weakness of character or some other cause. In a sense such persons are as much bound and at the mercy of the traffickers as would be the victims of the physical assaults I have postulated to their assailants. However, the unlawful distribution of dangerous drugs leads to more than the destruction of a person’s sight: it leads to the destruction of the drug taker as a human being – and where the quantity of drugs is such as it was in the present case the number of persons likely to be affected is not limited to two or three. It is true that the damage resulting from the traffic in dangerous drugs is less direct and less immediate than that resulting from a battery. The drug trafficker is not immediately confronted with the full horror of the results of his acts and, indeed, may never see those results. However, an insidious poison can kill with the same thoroughness as, though without the merciful swiftness of, a sudden knife thrust to the heart. Murder by poisoning has for long been regarded with peculiar abhorrence, but such is the blindness or callousness of some that they cannot will not see that the unlawful use of dangerous drugs is as damaging to society. It is a function of deterrent sentences to substitute for the natural abhorence which ordinary men would feel terror of the punishment which is society’s expression of its disapproval. I will not subscribe to the selfish view that whether or not he will take dangerous drugs is a matter for each individual and that therefore traffickers in dangerous drugs are really concerned in nothing more than a commercial operation with which the state should not concern itself: no man can live unto himself in our society. I think that these facts, if not self-evident, have been so well publicised that no mentally normal man or woman in Hong Kong who has reached the age of 19 years can be wholly ignorant of them. Consequently I cannot regard the youth of the 1st Appellant as a factor of greater weight than was accorded to it by the learned trial judge. 5.It is then emphasised that the 1st Appellant pleaded guilty and assisted the police and it is suggested that the fact that he received the same sentence as the other Appellants shows that this factor was not given sufficient weight. While it is true that the 1st Appellant was convicted on two counts and the others upon only one I do not think the two offences were fairly distinguishable in judging the severity of sentence as between the Appellants. What might tend to weigh against him is that the flat had been rented in his name, but it is possible, especially having regard to his youth and background, that he was a mere nominee for someone else. I therefore incline to the view that insufficient weight was given to the plea of guilty and that some small reduction of sentence should be made in his case. 6.An aggravating factor in the case of the 2nd Appellant was the fact that she had a previous conviction for unlawful possession of dangerous drugs and had been sentenced to five years’ imprisonment in 1967, when she was 63 years of age. That sentence appears to have made little impression upon her for we find her repeating her offence so soon after her release from prison. Again, the learned judge expressly referred to his distaste at having to sentence an old person to a long term of imprisonment and I think there is a necessary inference that he thought the 2nd Appellant’s previous conviction must be set off against her old age. But she was clearly a leading light in this business and had she been twenty years younger a sentence of ten years’ imprisonment might well have been appropriate. I do not think too much weight should be attached to the fact that in WONG Yim-yu v. Reg. 1972 H.K.L.R. 6 the court did not increase a sentence of seven years’ imprisonment for an offence involving a much larger quantity of dangerous drugs. I am not unmindful of the fact that the 2nd Appellant has no relatives in Hong Kong and would have difficulty in obtaining employment at her age, but she was not alone in that situation and there are governmental and charitable organization from which the aged can obtain assistance when necessary. It has been suggested that the 2nd Appellant is in failing health, but the evidence which has now been produced does not support the contention. As the Chief Justice said in the course of the argument, where poor health of an appellant is alleged it is always desirable that a physician be called or an affidavit filed. I see no reason to interfere in the case of the 2nd Appellant. 7.The appeals of the 3rd and 4th Appellants can conveniently be considered together. Both had clear records. They come from a family in which there are four children aged twelve or under. The father, the Appellants and a brother were usually earning and, in addition to supporting the young children, were supporting a brother at college: the mother is ill and cannot work. At a time when the Appellants were unemployed they are said to have been approached and to have been offered a wage of $20 a day to do the work which has led to their conviction. The 4th Appellant is said to have divorced her husband for desertion and to be left with a daughter aged six years to support. No doubt the learned judge in sentencing both to the same term as the other Appellants thought the 4th Appellant’s matrimonial difficulties should be balanced against the 3rd Appellant’s youth. It is impossible to weigh these matters with great nicety but we must conclude that the learned judge thought that in the end there was no sufficient reason to distinguish the 3rd Appellant from her sister or the other Appellants. I see no reason to believe that he failed to consider any relevant factor, but I have come to the conclusion that it would be right to give more weight than the judge can have given to the lack of guidance which a young girl is entitled to expect from a much older sister. While the deterrent factor outweighs the individual factors in relation to the other Appellants, in relation to this young woman the individual factors appear to me to assume greater importance. 8.In the result I would dismiss the appeal of the 2nd and 4th Appellants but I would allow the appeals of the 1st and 3rd Appellants. The maximum allowance we could properly make in the case of the 1st Appellant for his plea of Guilty would reduce his sentence to six years’ imprisonment and I would consider that appropriate. The 3rd Appellant did not plead Guilty but in this she may still have been influenced by the example of her sister and I would reduce the sentence imposed upon her to one of 4 years’ imprisonment. 19th January, 1973. |