HKSAR v. LAM WAI IP

IN THE COURT OF APPEAL

1997, No.214
(Criminal)

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J U D G M E N T

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Power, Ag. Chief Judge, H.C. (giving the judgment of the Court):

1. The applicant in this matter faced two counts of trafficking in a dangerous drug. In the first it was alleged that he, on 24th December 1995, in Room 414 Block A, 20-22 Ming On Street, Hung Hom, trafficked in 16.31 grammes of a mixture containing 1.98 grammes of heroin hydrochloride and 8 tablets containing 0.14 gramme of midazolam maleate, being a salt of midazolam. In the second count it was alleged that at the same time and place he trafficked in 20.80 grammes of a crystalline solid containing 19.68 grammes of methamphetamine hydrochloride. He pleaded guilty before Judge Jackson to simple possession and was ordered to be imprisoned for three years and four months in all. He now seeks leave to appeal against that sentence on the ground that it was manifestly excessive.

2. He was perhaps fortunate to have had his plea to simple possession accepted but we cannot go behind that plea in this court.

3. The sentence was passed on him on 8th August 1996. That is important as we will later turn to consider a decision delivered after that date. In recent times the Court of Appeal has had to grapple with the problem of simple possession of more than minimal quantities and to consider the latent risk factor which must be taken into account when dealing with such offences. This factor is of particular importance when dealing with 'ice' which is a recreational drug fashionable for use on social occasions. We are mindful also that the often immature users of that drug have no inkling of the horrific effects which it can have. Guidance, we think, can best be obtained from the recent case of Chan Shing-hing No.725 of 1996, the decision in which was delivered on 9th April 1997, where the court was dealing with simple possession of a quantity of 29.86 grammes of ice. Liu J.A. delivering the judgment of the court said:

"Consequently the five years' starting point adopted by the trial judge who was not referred to Wu Chi Wai would seem to be inappropriate. The starting point for simple possession in the instant application of a lesser quantity than that in Wu Chi Wai case should be three years."

That clearly indicates an appropriate starting point for offences of this kind. It is one which we are persuaded it would be proper to adopt. That being so the starting point in the present case was too high. Three years would have been an appropriate starting point which must be reduced by one year being the one-third discount which is now customarily given for a plea.

4. The application is allowed. Its hearing is treated as the hearing of the appeal and the sentence is varied to one of two years.

5. Before leaving this matter we think it appropriate to say that this court will keep offences of this kind under constant review. Circumstances in the future might well warrant a more serious view being taken of the latent risk factor, particularly in cases which involve the substance 'ice'.