NG FUN v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1072 OF 1987

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J U D G M E N T

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1. The appellant, a 74 years old man, was convicted of possession of dangerous drug for the purpose of unlawful trafficking and was sentenced to 18 months' imprisonment. He appealled against both conviction and sentence.

2. At the outset of this hearing, the appellant sought leave to abandon his appeal against conviction. I granted leave and dismissed the appeal against conviction.

3. The appellant told this Court that he was suffering from asthma, stomach-ache and permanent disability of left leg. He started consuming drugs 7 or 8 years ago because of his stomach-ache. His daughter-in-law has runaway, his son has to go to work leaving his grandson home and there is no one to look after him. He asked this Court to reduce his sentence.

4. As this case caused me some concern, I adjourned it for obtaining a background report and a full medical report as the appellant claimed he suffered badly from asthma and had trouble with one leg.

5. The background report revealed that the appellant came to Hong Kong in 1949 and a few years later got married. He worked in a shipyard and when he was in his 50's he retired and received a lump sum of $10,000. With that money he built a but and to workshop to make joss sticks. However, a few years ago his hut and workshop had to be demolished by Government and as compensation he was allocated a small one roomed flat and he was put on social welfare assistance on which he relied as his sole means of livelihood. In 1967 his wife died - he described this as one of the great sorrows of his life. His second great sorrow was that his two sons with whom he lived are drug addicts and both have been to prison. I have been supplied with a copy of their previous convictions. The appellant has been a drug addict himself for almost ten years. Living with him was his grandson now aged 12. The grandson was interviewed and said the appellant is his closest friend. The appellant used to cook and look after him. His only convictions are two convictions relating to drugs for none of which he was given a custodial sentence. The appellant first registered at a methadone clinic in December 1981 and he last attended that clinic in December, 1987.

6. The first medical report I received was unsatisfactory but the second medical report which I received this morning said that X-ray showed him suffering from "chronic obstructive airway disease" and he was put on a broncho-dilator which he has since taken regularly.

7. It is difficult for a court, on the above facts, not to feel some sympathy for the appellant. The report before me indicates if he were to return to his home he would probably revert to his drug taking and on his own admission he would not be able to look after his grandson to whom he appears devoted. The presence of his two addicted sons would make the position intolerable.

8. When the learned magistrate passed a sentence of 18 months he did not have the advantage of knowing the above facts. However, even on the above facts I cannot say that the sentence was wrong in principle or manifestly excessive. The appeal against sentence is also dismissed.