THE QUEEN v. LUI KIN MAN

IN THE COURT OF APPEAL

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J U D G M E N T

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Kempster, J.A. :

1. On 26th November 1987 Lui Nil Nan Mal convicted in the District Court by Judge Evans of the possession of dangerous drugs for the purpose of unlawful trafficking and, on the same day, sentence to six years' imprisonment. Lui applied to this court initially for leave to appeal both against his conviction and, in the alternative, against his sentence. He wishes to abandon the application in relation to conviction and that application we accordingly dismiss at the outset.

2. As to sentence the quantity of dangerous drugs in respect of which the applicant was convicted was 254.89 grammes of a mixture containing  21. 37 grammes of salts of esters of morphine. It is conceded by Mr. Wong, on his behalf, that, if the guidelines set out by this court in Chan Chi Ming v. The Queen⁽¹⁾ apply without modification, the sentence is appropriate. What is argued is that the time has come for this court to review those guidelines to reflect in this and other similar cases the fact that the mixture in relation to which an applicant has been convicted contained a relatively low proportion of salts of esters of morphine. That consideration, it is argued, should be regarded as a mitigating factor.

3. The judge himself, having mentioned the low proportion of dangerous drug in the mixture found in the applicant's possession, said there was nothing to take the case "out of a tariff sentence situation". Certainly no discount fell to he made for a plea of "guilty" or for a clear record.

4. In relation to the purity of a mixture containing a dangerous drug, Sir Denys Roberts, C.J., said in Chan Chi Ming⁽1) at p 492 that it was "the quantity of the mixture which should he looked at rather than its content. This is because it is the mixture which is sold to the consumer". That comment is as true today as it was in 1979. Further, it is apparent' from statistics which have been put before this court on behalf of the Crown, by consent, that the quantity of Number 3 heroin available to and used by addicts in the Territory, albeit in weaker mixtures, has greatly increased since 1979 while, perhaps as a necessary corollary, the price of such mixtures has decreased. Mr. Cross on behalf of the Crown has suggested, and we think the inference inescapable, that manufacturers have elected to debase the mixtures sold in order to maximise their profit margins.

5. In considering changes to guidelines we have regarded to what was said, again by Sir Denys Roberts C.J., in Attorney General v. Chan Chi Man⁽²⁾ at p 228. He advanced as a material factor "the extent to which the dangerous drug concerned is increasingly or decreasingly used". The increase upon which we have remarked began to take effect as the deterrent effect of the heavier sentences suggested in Chan Chi Ming⁽¹⁾ began to wear off.

6. Having given due consideration to the submissions made by Mr. Wong we do not believe it appropriate to add a fresh factor to those which judges are required to take into account when sentencing in this class of case. It would appear from the terms of section 46(c) & (e) of the Dangerous Drugs Ordinance (Cap 134) that in the view of the legislature also it is the mixture which is significant rather than the quantity o?dangerous drug.

7. Having regard to the public interest in the matters which have been advanced in argument we allow the application for leave to appeal against sentence, treat this as the bearing of the appeal but dismiss it.

(1) [1979] HKLR 491

(2) [1987] HKLR 221