THE QUEEN v. TSE HON WONG

IN THE COURT OF APPEAL

1986, No. 603
(Criminal)

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JUDGMENT

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Yang, J.A.:

1. This Applicant was found guilty after trial of two counts of possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to 12 years' imprisonment on each count, the two sentences to run concurrently. The total amount involved in these two counts was some 898 grammes of a mixture containing salts of esters of morphine.

2. On the 22nd May this Applicant's brother, D1, was kept under police observation and was seen allowing his brother, the Applicant, to enter the car he was then driving, carrying with him a plastic bag which was subsequently found to contain about 4½ kilos of dangerous drugs. The police stopped the car and the drugs were found. The police then went to a flat in Soares Avenue and there some more dangerous drugs (just over 3½ kg.) were found on the premises. The flat belonged to the brother, D1.

3. At the trial the Applicant pleaded not guilty to both charges. The brother D1 pleaded guilty and was sentenced to 8 years' imprisonment on each charge, the two sentences to run concurrently. In assessing sentence for D1 the judge took into consideration the fact that he had pleaded guilty and that he was prepared to testify against a man who was to be D4 though in fact he did not appear in Court because he had jumped bail. At the time of the offence this Applicant was 19 years of age and the elder brother 22.

4. There are advanced before us this morning a number of grounds, namely that the judge failed to take into sufficient consideration the age of the Applicant, the fact that he was under his elder brother's influence and the relatively minor role played by him in the commission of these offences. The judge in his Reasons for Sentence adopted as a starting point for the brother, D1, a term of 15 years after trial. He therefore gave the Applicant a discount of 3 years for his plea of guilty and his willingness to give evidence.

5. We are prepared to accept the starting point of 15 years as being appropriate for sentence after trial. Having adopted that starting point, we are of the view that the differential between the sentence imposed on the elder brother and that on the younger brother ought to reflect sufficiently D2's youth, his lesser culpability and D1's influence over him.

6. In all the circumstances we think that an appropriate sentence for the Applicant is one of 10 years on each count. We therefore allow the application, treat the application as the appeal and allow the appeal to the extent that sentences of 10 years on each count will be substituted for those of 12 years on each count imposed by the trial judge. The sentences are to run concurrently.