R. v. LEE CHE KEUNG

IN THE COURT OF APPEAL

1996, No. 682

(Criminal)

____________________

____________________

____________________

J U D G M E N T

____________________

Ching J.A. (delivering the judgment of the Court) :

1. The applicant was found in possession of three resealable plastic packets of dangerous drugs which consisted of a total mixture of 42.06 grammes containing 35.23 grammes of heroin hydrochloride. He was charged with trafficking in dangerous drugs but, after trial, was convicted of simple possession. As he had been willing to admit to the offence of possession throughout the Judge dealt with him as if he had been charged with and had pleaded guilty to possession. The Judge therefore gave him the usual discount of one third as for a plea of guilty. The starting point adopted was one of four and a half years and the applicant was therefore sentenced to a term of imprisonment for three years. This is his application for leave to appeal against sentence.

2. Despite his claims to the contrary, the applicant has been found not to be drug dependent. There is therefore no question of a drug addiction treatment centre. It was his own case that he had undergone a surgical operation on his right knee in mid 1994 and that he still suffered from residual pain. He was a delivery worker at the time and upon the advice of his friends that it would ease the pain he began to take dangerous drugs. He claimed to have been spending $100 per day on them. He has 11 previous convictions for some of which he was imprisoned. The only drug related conviction occurred in October, 1994, when he was fined $1,000 for possession. The present offence occurred on 14th April, 1996.

3. The sole ground of the application is that the Judge was wrong in adopting a starting point of four and a half years leading to a manifestly excessive sentence of three years. Reference was made by the Judge below to previous decisions. Reference to some of them has been made before us including, inter alia, the decision in Chan Ching Ho (1994) 2 HKC 457 where the drug involved was 62.81 grammes of salts of esters of morphine contained in a mixture of 112.56 grammes. On the Attorney General's application for review the sentence of three years was increased to one of four and a half years. As the Judge below commented, the Court of Appeal did not indicate what sentence the Court below should have imposed. It is well recognised that when a sentence is increased upon the Attorney General's application and the sentence becomes one greatly in excess of the sentence handed down in the Court below a discount will be given.

4. Reference to R. v. Lau Tak Ming (1990) HKLR 370 shows two things for the purposes of the present application. First, the Courts are to look to the quantity of the narcotic and not to the quantity of the mixture. Here the narcotic was 35.23 grammes accounting for about 84% of the mixture. Secondly, for a conviction for trafficking after trial the tariff for 10 to 50 grammes of narcotic lies between five and eight years. It is accepted that the applicant should be sentenced for possession, not trafficking. On the other hand it was also accepted that the Courts must take into account not only the danger posed by the drugs to the applicant but the danger posed to the public if the drugs were to find their way into the hands of others. Before us it was urged that there was evidence that the drugs were for the applicant's own consumption and that the packaging did not indicate a risk that they would find their way into the hands of others. With respect, that misses the point. Packaging in small quantities into a large number of small bags may well indicate a higher possibility of some of them passing into the hands of others. However, a small number of packages of a large quantity of the drugs does not necessarily indicate an absence of that possibility.

5. It has been pointed out in R. v. Wong Yiu Kwan (Criminal Appeal No. 53 of 1995) that it is not possible to lay down guidelines for cases of possession. Clearly, however, sentences should not be as great as those imposed for trafficking. The sentence in this case did not exceed that which would have been imposed for trafficking either on a plea or after trial. Having regard to all the circumstances the starting point of four and a half years was perhaps high. However we do not find it possible for us to say that it was wrong nor can we say that the final sentence of three years was wrong and this application is therefore dismissed.