ATTORNEY GENERAL v. DIL BAHADUR GURUNG

IN THE COURT OF APPEAL

1992, No. 13
Application for Review

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J U D G M E N T

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Silke, V.-P.:

1. Dil Bahadur Gurung - the respondent - was arrested on 24th September 1991 during a police raid on the Mandarin Guest House in Chung King Mansions, Kowloon. He was subsequently charged with possession of dangerous drugs for the purpose of unlawful trafficking.

2. On 8th December 1991, he appeared in the Magistrate's Court on committal proceedings concerning an amended charge. That amended charge, filed on 4th December 1991 was also in respect of the offence of possession of dangerous drugs for the purpose of unlawful trafficking contrary to section 7(1)(ii) of the Dangerous Drugs Ordinance, Cap.134. Its particulars were that, on 24th September 1991 at Flat E5, 13th floor, Mandarin Guest House, Chung King Mansion, he had in his possession a dangerous drug namely 29,496.72 grammes of a resinous substance containing 2,140.49 grammes of tetrahydrocannabinol, which is a tetrahydro derivative of cannabinol, for the purpose of unlawful trafficking therein.

3. He pleaded guilty and was committed to the High Court for sentence.

4. The sentence hearing was first set down for 13th February 1992. An application was made for an adjournment pending the trial of two of the respondent's accomplices. The trial was due to commence in October 1992. The respondent was to be the main witness. As the day of that trial approached, because of matters which had come to the attention of the Crown, the Crown felt unable to present the respondent as a witness to the truth. Further, the respondent withdrew his offer to give evidence. The two accomplices were acquitted no evidence being offered against them. The sentencing matter was then set down for 29th October 1992 but was again adjourned. Finally, the respondent appeared before Sears J. on the 8th December 1992, maintained his plea of guilty and was sentenced to a period of 3 1/2 years' imprisonment.

5. The Attorney General applied, within time, and was, on 21st December 1992, granted leave to make his application for Review of the sentence under the provisions of section 81A of the Criminal Procedure Ordinance. The basis of the application was that the sentence was manifestly inadequate and/or wrong in principle.

6. The facts, as they were detailed to the trial judge, were that, in the course of the police raid on 24th September 1991, the respondent was found, with others, sitting in a room opposite to Room No.6 in the Mandarin Guest House. He had a key upon him which was key to Room No.6. On entering that room by use of the key the raiding party found, on a bed, two wooden Nepalese handicraft face masks and two wooden Nepalese statuettes. Concealed inside these were lumps of cannabis resin. Under the bed in the room was found a briefcase and three suitcases. In the briefcase there were twelve pieces of cannabis resin and six polythene packets of cannabis resin. Inside suitcase No.1 were thirty-three face masks. In suitcase No.2 there were twenty-four face masks; and in suitcase No.3 there were twenty-five face masks together with twenty polythene packets of cannabis resin. All the face masks carried concealed cannabis resin.

7. The total quantity, as set out in the charge, had a street value of approximately HK$2.7 million. It was pointed out to the trial judge that this was the largest seizure of cannabis in the history of Hong Kong.

8. The respondent accepted that he possessed the drugs and that he had been paid in Nepal to come to Hong Kong to take possession of them and to keep them safe. He was to await instructions as to their disposal. The Crown was unaware how the masks originally came to Hong Kong.

9. In the Attorney General v. Chan Chi Man [1987] HKLR 221 this court set out guidelines for sentence in respect of possession of cannabis resin for the purpose of unlawful trafficking. That decision was given on 11th December 1986. It is only necessary at this stage to refer to the headnote where, having set out amounts ranging from 500 grammes to 9,000 grammes, the court suggested in respect of the that last quantity a tariff of four years imprisonment and upwards should apply. This of course after trial. At page 224I the court, having set out the tariffs to which we have referred, said:

" So far, no clear distinction appears to have been drawn in sentences between cannabis in the three forms in which it commonly appears, that is to say herbal cannabis, cannabis resin and cannabis oil.

The principal psychoactive constituent in the cannabis plant is known as tetrahydrocannabinol.

The concentration of tetrahydrocannabinol in herbal cannabis is up to about 8% of the bulk weight. In cannabis resin, tetrahydrocannabinol concentration is about 15%. In cannabis oil, it is 60%.

It will, therefore, be open to the courts, if they think fit, to take into account the less damaging effect, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin and adjust the sentence accordingly."

10. By analogy with R. v. Lau Tak Ming the quantity of "the narcotic" was that which was considered by the trial judge - and agreed by the Crown - to be the basis for sentencing. The quantity of the narcotic here was 2 kilos of cannabis out of the total 30 kilos of mixture.

11. The judge, in passing the sentence he did, bore in mind that the guidelines in Chan Chi Man were applicable to convictions after trial; that the concentration of the cannabinol here was 7% and therefore a low grade type of cannabis; the plea of guilty at the first available opportunity; the role played by the respondent as the store keeper; the period the respondent had been in custody prior to sentencing - some 15 months from plea; finally, that the respondent was a foreigner, a Nepalese, and imprisonment is always a grave punishment to such person.

12. He took as his starting point a sentence of 6 years, that is 6 years after trial, making specific reference to the strength of the concentration. Had it been higher, he would thought of 8 years as being the proper starting point. He then gave the discount for the matters which he had taken into consideration arriving at what he considered to be the appropriate sentence of 3 1/2 years' imprisonment.

13. The Attorney General's application was on the basis first that the total quantity of cannabis seized amounting to 32 kilogrammes and, as we have indicated, the largest ever seizure in Hong Kong, the sentencing judge was in error when he took 6 years as his starting point. This failed to reflect the gravity of the offence.

14. Second, the sentencing judge erred in having regard to the mitigation put forward that the respondent, being a foreigner, would suffer additional hardship in prison.

15. Third, he was wrong to take into consideration the long period the respondent was in custody awaiting sentence. Section 67A of the Criminal Procedure Ordinance, Cap.221 permits that period to be treated as part of the ultimate sentence.

16. Fourth, the judge erred in taking into consideration that the respondent had offered himself as a Crown witness though, as he put it, "that subsequently disintegrated". A mere promise to give evidence is not a relevant mitigating factor.

17. Fifth, the judge erred in attaching undue weight to the concentration of tetrahydrocannabinol, and insufficient weight to the overall quantity of the drugs seized and the value.

18. Sixth, although the guidelines prescribed in Attorney General v. Chan Chi Man of over 4 years and upwards for 9,000 grammes which suggests that the level of sentence thereafter is at a discretion of the court, the sentence here should have been such as to demonstrate that the quantity of cannabis resin was three times the 9,000 grammes.

19. We would interpolate here, and this is a matter to which we shall return, that in R. v. Larm Tat Ming, Criminal Appeal No. 427 of 1992 (unreported) this court - in considering a charge of trafficking in cannabis where the applicant having pleaded guilty to the offence of unlawful trafficking and was sentenced to a period of 15 months' imprisonment - commented, at page 4, that the tariffs in Chan Chi Man appeared "ludicrously low when applied to those who traffick". We thought thatChan Chi Man was not considering direct trafficking by persons who were in the business of trafficking. Nor in Chan Chi Man was there any evidence produced of the incidence of cannabis usage or of cannabis trafficking. The court went on to say at page 5:

"We thought the court to be in urgent need of assistance for the purpose of generally revising the tariff sentences set out in Chan Chi Man for cannabis. That would obviously be for another occasion. As we indicated at the conclusion of the hearing, when we announced the result of the appeal, we would be grateful for such assistance from the Attorney General on the appropriate occasion. We have in mind the general type of assistance afforded to this court in R. v. Lau Tak Ming [1992] 2 HKLR 370."

20. The Attorney General, having fully in mind that which was said in Larm Tat Ming, placed before this court a Notice of Motion seeking to adduce fresh evidence under the provisions of section 83V of the Criminal Procedure Ordinance on the ground that the reception of that evidence was necessary or expedient in the interests of justice. The purpose was to place before this court expert evidence relating to the use - and the seizures of- cannabis.

21. To return to the Review proper. First, the judge was fully aware, and was entitled to take into account, the concentration of tetrahydrocannabinol in the cannabis resin which is the subject of the charge here. Under the guideline set out in Chan Chi Man cannabis resin falls in the middle of the danger zone the least damaging being herbal cannabis and the most damaging being cannabis oil. We note that in R. v. Nguyen Mahn-Hung, Criminal Appeal No.314 of 1992 (unreported), where the applicant had pleaded guilty to trafficking in 40,318.7 grammes of herbal cannabis, he was sentenced to a period of 5 years' imprisonment which sentence was not disturbed on appeal. While we are concerned here, as we have indicated, with cannabis resin in a lesser quantity, nevertheless, Nguyen Mahn-Hung is indicator of the sentences presently being passed in relation to this drug.

22. The sentencing judge noted the concentration in Chan Chi Man was in the region of 15%, here it was 7%.

23. We do not think that the trial judge led himself into the error suggested by the Attorney General in regarding the mitigation that the respondent would, as a foreigner, suffer additional hardship in prison. What the sentencing judge said was this, at page 10:

"Mr Lee has properly drawn my attention that you were found in possession of a key only and, of course, being a foreigner imprisonment is always a grave punishment. I confess I find it a little difficult to work out what I think is the appropriate sentence here."

We consider that here he was simply making reference to the mitigation proffered on behalf of the respondent at trial and that he was not treating the foreigness of the respondent as being a factor in mitigation resulting in a reduction of the normal sentence he would have passed (see R. v. Venatius Okoye, Criminal Appeal No. 405 of 1990 page 3 (unreported)).

24. When the sentencing judge made reference to the period the respondent had spent in custody he was making specific reference to the period between his formal plea of guilty in court and the sentencing process, some 15 months. We have no doubt that he was aware of the provisions of section 67A of the Criminal Procedure Ordinance but we think that he was entitled to bear in mind, in the general process of arriving at a just sentence, that this matter had been hanging over the respondent's head for a considerable period of time.

25. It may be, in indicating that he also had regard to the fact that the respondent "did offer [himself] as a Crown witness although that subsequently disintegrated" the trial judge did not have fully in mind the reasons why that disintegration took place. However that may be, the respondent in a confessional statement he had made to the police had, at least, attempted to be co-operative. This was uncontested in the course of the sentencing process and was a matter which merited some consideration from the sentencing judge.

26. When a court is considering quantities of dangerous drugs, whatever their nature, which exceed the top level set out in guideline cases such as Lau Tak Ming - or for that matter Chan Chi Man - it is a principal of sentencing that the mathematical progression tapers off. Otherwise, as Hunter JA said in R. v. Cheng Yeung [1989] 2 HKLR 258 - the court was considering the issue of the tariffs for trafficking in salts of esters of morphine - at page 264G:

"Fairness to those in possession of less than 1 kg suggests that those in possession of more, in the range simply of 1 kg to 10 kg, should be dealt with not necessarily proportionately, but at least not significantly more leniently. Put another way the graph may start to curve at 1 kg, but the curve should only be gradual."

27. Further, it was not suggested that the respondent here was the mastermind of this operation. He had come to Hong Kong to act as a storekeeper cum courier. Not that a courier receives any lesser sentence within the guidelines but that a mastermind may receive an enhanced sentence by virtue of the role he plays.

28. The major mitigation here was the plea of guilty at the first opportunity by the respondent. Such a plea should be recognized by the granting of a substantial discount. No evidence as to the usage or seizures of cannabis was led before the sentencing judge. Bearing in mind all these matters, we were not persuaded that the trial judge either erred in principle or imposed a sentence which was so manifestly inadequate so as to warrant our interference.

29. At the conclusion of the hearing, we refused the Attorney General's application to review the sentence but, because of the matters to which we shall now come, we thought it proper, and so stated, that we should reserve our reasons and deliver them at a later stage. These are those reasons.

The Notice of Motion

30. I would preface our consideration of this matter by offering my personal apologies to the Attorney General, and in particular to Mr. Saw who appeared on his behalf in this court, if I have in any way misled them - and I fear I may have - leading to the preparation of the very considerable preparation to ground the application for the calling of fresh evidence. It is part of the duty of this court to give guidelines where such guidelines would be appropriate in respect of matters of sentence. The Law Reports are littered with authorities where this has been done. But we must always bear in mind that these proceedings are adversarial. Proper ground work is necessary before the court can embark upon a guideline exercise.

31. Of those authorities, three are particularly in point with the position in which the court finds itself here. These are, in order of date: R. v. Cheng Yeung [1989]2 HKLR 258, R. v. Lau Tak Ming & others [1990]2 HKLR 370 and The Attorney General v. Ching Kwok Hung [1991] 2 HKLR 125.

32. Cheng Yeung, an appeal against sentence by the applicant, dealt with the appropriate sentencing levels for possession of very substantial quantities of dangerous drugs for purposes of trafficking and, incidentally, the difference between No.3 and No.4 heroin. It dealt with and revised the tariffs laid down in R. v. Chan Chi Ming [1979] HKLR 491. This was at a time when No.4 heroin was rarely, if ever, openly sold on the market. There were placed before that court statistics, as itemized at page 260, showing a number of convictions for major and minor drug offences; the total of drugs seized in kilogrammes; the purity of No.3 heroin and the price of No.3 heroin per kilo. The matter introduced before the court related to that which Chan Chi Ming itself had said and elaborated upon matters referred to in that case. In that sense it differed from the type of evidence which, for the very first time, was sought to be presented to us here in relation to cannabis.

33. In Lau Tak Ming, which itself reconsidered Cheng Yeung and which again was an appeal against sentence by the applicant, the court, having heard argument relating to the sentences passed on the individual applicants, adjourned the matter to allow an amicus curiae be appointed because matters of public interests arose in connection with the decision in Cheng Yeung. There was also for consideration sentences in two High Court trials which involved, as did Lau Tak Ming itself, No.4 heroin where the trial judge had taken issue with the decision in Cheng Yeung, declining to follow it. Counsel appearing for the applicants were not particularly concerned with that which was why an amicus was appointed. Lau Tak Ming provided a vehicle by which the court dealt with matters of legitimate public interest although that legitimate public interest was not directly on point in relation to the particular applicants. It heard fresh evidence as to the then existing situation so that the court could at the first opportunity resolve the apparent difficulties which had arisen. Further, it was necessary to amplify the statistics which had been presented in Cheng Yeung and to reconsider them. Again a situation which differs from here.

34. In Ching Kwok Hung, the court was concerned with possession for the purpose of unlawful trafficking of methamphetamine hydrochloride - 'ICE" - where the respondent had been sentenced to a period of 7 years' imprisonment. The Attorney General, under the provisions of section 81A, asked this court to review that sentence contending it to be manifestly inadequate or wrong in principle. He also sought guidelines for the use of trial courts in future cases. There the sentencing judge, who incidentally was Sears J., was very conscious of the fact that that case was one of the first relating to ICE to come before the court. Evidence was called before him as to the nature of the drug, its use and its prevalence. Fuller information was placed before the Court of Appeal - that is an amplification of the evidence already placed before the trial judge - so that the court could give the required guidelines and it did so. Again a situation different from that here.

35. We are conscious of the decision in The Attorney General v. Chan Tak King and Another [1989]2 HKLR 428 which indicated that, where the court thinks it proper, it may decline to make an order on an Attorney General's application for Review -there is an order directly affecting a respondent by an increase in a sentence or one directly affecting the Attorney General by refusing the application.

36. That which was sought to be presented to us was entirely fresh evidence none of which had been canvassed in the court below. We felt, although we appreciate the view of the Crown that this matter should and is capable of being dealt with within the confines of this case - and they went to a great deal of trouble to collate the material for presentation to us - nevertheless we think that some material should be placed before a trial judge which can, if required, be amplified in this court before we go on to give guidelines.

37. We would suggest that material be placed before a trial court at the next available opportunity so that the judge can consider the guidelines in Chan Chi Man to state why, if he so thinks, that they should be reviewed and indicating what order he would have made were he free from its binding authority. It would then be for this court, should it be asked, to consider what had taken place in the trial court and for the Crown, if necessary, to amplify the evidence already called. We considered this to be the preferable way of dealing with matters of this kind.

38. This is said not in any spirit of criticism of the course attempted to be taken by the Attorney General. The sentences for full scale trafficking in cannabis clearly need to be reconsidered. It is to be hoped that the work done by the Crown will not be wasted.

39. It is for the these reasons that we decided not to entertain the Notice of Motion nor to hear the evidence the Crown sought to produce.