R. v. CHIJIOKE UMEH

IN THE COURT OF APPEAL

1994, No. 312
(Criminal)

____________

________________________________________

J U D G M E N T  O F  T H E  C O U R T

________________________________________

Macdougall, V.-P.:

1. The applicant pleaded guilty before Deputy Judge Thomas in the District Court to one charge of trafficking in a dangerous drug, namely 5.33 kilogrammes of cannabis and was sentenced to two years and four months' imprisonment. He applied for leave to appeal against that sentence and appeared before this court on 10 February this year when he asserted that he had told his legal advisers that, although he had gone to the speedpost collection centre at Tsimshatsui post office and had presented a collection card and collected a parcel which when he was arrested was found to contain cannabis, he did not know that the parcel in fact contained cannabis. He also said that he had told his lawyer that because he had been caught with the parcel he would plead guilty. However, much to his surprise, his counsel told the court that he knew what the parcel contained when he received it.

2. According to the applicant he made no protest to the deputy judge because he thought that he had no right to speak. In view of these assertions we adjourned the hearing to invite the applicant's legal advisers to comment.

3. We have now been informed that, indeed, the applicant, when initially interviewed, had denied knowledge of the contents of the parcel but had insisted on pleading guilty. He was told that he could not plead guilty unless he actually knew that the parcel contained cannabis at the time that he received it. He then admitted that he knew that the contents of the parcel were cannabis at that time. He was then advised to think matters over. Having done so, he repeated his admission that he had known what the parcel contained and that he wished to plead guilty. Moreover, at the hearing before the deputy judge, the charge was read and explained to the applicant and he then elected to plead guilty. We are satisfied that he pleaded guilty on the basis that he knew that the parcel contained cannabis at the time that he received it.

4. As to sentence the deputy judge referred to the Attorney General v. Chan Chi-man [1987] HKLR 221 where the court suggested a range of sentences for possession of cannabis resin. For quantities between 3 and 6 kg the suggested sentencing range was 24-36 months. The court added, however, that it would be open to sentencing judges to take into account the less damaging effect, gramme for gramme, of herbal cannabis as compared with that of cannabis resin and adjust the sentence accordingly. The guidelines apply, of course, to sentences passed after a contested trial. Although the deputy judge stated that he was aware that the drug was herbal cannabis, not cannabis resin, and that he gave credit for the plea of guilty, he imposed a sentence of two years and four months' imprisonment. He did not state the percentage discount which he granted for the plea of guilty. Had the drug been cannabis resin and a discount of 25% been granted for the plea of guilty, the resulting sentence would have been two years and three months' imprisonment. Thus the sentence passed on the applicant was heavier than that which would properly have been passed had the drug been the more potent cannabis resin.

5. In our view the proper starting point for sentence should have been two years and four months' imprisonment, bearing in mind that the drug concerned was herbal cannabis. Allowing for a discount for the plea of guilty, we think that a sentence of 20 months would have been right in the circumstances of this case. We therefore grant the application and, treating the application as the hearing of the appeal, allow the appeal and reduce the sentence from one of two years and four months' imprisonment to one of 20 months' imprisonment.