THE QUEEN v. GARRY LA VERNE OHMERT

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. The applicant was convicted in the District Court of possession of cannabis and was sentenced to 2 years' imprisonment. He is an American citizen, who was found in possession at Kai Tak Airport on the 28th of March 1985, of 1,100 grammes of cannabis leaves, sometimes referred to in the cases as herbal cannabis. He pleaded guilty to possession for the purpose of trafficking.

2. He is 37 years of age, married but divorced and has a child to whom, presumably under court orders, he has periodic access.

3. Mr. Cheng Huan, who appears for him this morning, asks us to consider firstly the fact that as a foreigner he will find prison circumstances peculiarly difficult and he is indeed doing so at the moment in the Reception Centre. That is a factor to which we do not attribute any great importance. While it is quite right to say that anybody caught in somebody else's country and not speaking the local language will find prison a more disagreeable experience than would otherwise be the case that in general is not a circumstance which the court will take into account in mitigation to any substantial degree.

4. The Magistrate imposed a sentence of 2 years. In doing so he outlined the facts which included the fact that the leaves in question were the product of a deal whereby the applicant had disposed of a stereo recorder while in the Philippines - a stereo recorder which somewhat surprisingly is said to be have been worth about HK$420 - in exchange for the leaves which were found in his possession. The applicant is said to be himself addicted to the drug. The plea was however an unequivocal Plea to trafficking and the motive of profitability was undoubtedly a prominent factor to be considered by the court.

5. We have been referred to a number of cases on sentence in respect of possession of cannabis. One which comes to some extent close to the present circumstance ewas CHEUNG Wai-leung ⁽¹⁾ decided in 1982, where a teenager of 18 years of age was sentenced to 18 months suspended for 12 months for possession of 700 grammes of herbal cannabis. Upon review the Court of Appeal substituted an immediate custodial sentence of 12 months.

6. We have also been referred to two English cases. These are not of great assistance because although large quantities of the resin, which is a considerably more potent substance than the leaves, were involved in both and the sentences imposed were disproportionately light compared with the sentence in the present case, it is notarious that attitudes towards this drug vary in different territories. Courts will tend to establish their sentence patterns in respect of the vigorousness of the trade in the given territory and to the extent to which it is or the increase or otherwise.

7. It is noteworthy that amongst the District Court cases to which we have been referred there have been a number of cases in 1984 involving foreigners who are caught in possession of cannabis in Hong Kong.

8. The District Judge took into account, in the present case, that the applicant had no intention of disposing of the cannabis in this territory but that, of course, does not dispose of the fact that his possession was for the purpose of trafficking even if not within this territory.

9. The Judge said that he considered a deterrent sentence was called for. Mr. Cheng Huan points out that the applicant is, sofaras this court is concerned, a man without a criminal record and he queries whether deterrence isa desideratum in this case.

10. We have perused a list of District Court cases put before us. It would seem that there is a considerable variation in the sentence in the District Court in respect of cannabis whether in the herbal form or cannabis resin. The brief notes in this summary do not, of course, disclose in detail the factual background in any of the cases. There are some cases in which offences involving quantities of leaves similar to the quantity in the present case have been visited with a sentences of 2 years. There have been other cases in which possession of greater quantities of the much more potent substance - resin -have been visited only with fines.

11. We find it difficult to extract from that series of cases any very clear principle and we confine ourselves to considering whether the present sentence was imposed upon a wrong principle or is manifestly excessive.

12. We note the fact that the magistrate referred to deterrence. We think that that was not a proper consideration in the present case. We are also of the view that the plea of guilty may not have been given quite as much weight as it ought to have been. It is for those reasons only and not in respect of any principle which we would seek to deduce from many recent District Court cases put before us that we think we should interfere in the present case.

13. We will grant the application and treating it as the hearing of the appeal, we will set aside the sentence of 2 years and substitute therefor a sentence of  18 months only.

(1)    Application for Review 7 of 1982