ATTORNEY GENERAL v. LAM KWOK HUNG

IN THE COURT OF APPEAL

Application for Review

1997, No. 6

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The respondent in this application for review faced two counts of trafficking in dangerous drugs. The first particularized that on 17th September 1996, outside room 901 Man Fuk Building, 40 Yuet Wah Street, Kwun Tong, he had unlawfully trafficked in 7.51 grammes of a mixture containing 6.50 grammes of heroin hydrochloride. The second charge particularized that at that same building in Room 901 he unlawfully trafficked in 19.74 grammes of a mixture containing 17.16 grammes of heroin hydrochloride. He pleaded guilty to both charges.

2. The facts were relatively simple. On the day in question at about 8:35 in the evening, police officers saw the respondent and his girl-friend come out from Room 901. He was searched and the dangerous drugs mentioned in the first charges were found upon him. Having been arrested and cautioned he said, "Ah Sir, please give me a chance. It is only my first time to keep the white powder for other person." The police then took him to Room 901 and he pointed to a pillow and said, "Ah Sir, the white powder is below the pillow." It was checked and the dangerous drugs, the subject of the second count, were found under the pillow. He said in regard to those drugs, "Ah Sir, all the white powder here were kept for others."

3. The respondent also said that he would be given some of the drugs for self consumption as a reward for storing.

4. The trial judge bore in mind the offence and that the respondent was storing drugs for others and to obtain some for his own consumption. He was fully mindful of the age of the respondent, 19 years, and for his previous convictions. He had in fact a very bad criminal record. There were 19 convictions commencing in March 1992. They included theft and robbery and possession of an offensive weapon. He was, in September 1995, sent to a drug addiction treatment centre. He, having been released, offended again in February 1997, by committing two offences of theft from a motor vehicle. The learned judge also detailed the failure of the respondent to respond to the assistance that had been offered to him in the past. The judge said:

"I have indicated my concern to Mr. Au who appears for the defendant, and directly to the defendant himself, whether it would not be just a waste of time to send the defendant back to a drug addiction treatment centre again because it seems to me, looking at his record, that he simply has not made sufficient effort on his own part to cure himself of his addiction and, for instance, to stop mixing with undesirable people.

The defendant has assured me that he is sincere in his desire to be cured of his addiction and in his intention to make a real effort to take advantage of the opportunity to cure himself, if he is sent back to the drug addiction treatment centre. I have indicated to him that I am relying on that assurance and trusting that he is speaking the truth, and trusting his sincerity in this matter and that on that basis I do intend to give him another chance.."

Having made those remarks, the judge made the Drug Addiction Treatment Centre order which the Attorney-General urges before us was wrong in principle and manifestly inadequate. The real question for this court is whether this was one of those rare cases where pre-eminence could properly be given to the rehabilitative element. A judge who has overlooked nothing material, and it is not suggested that the judge in this case had, clearly at the end of the hearing has a feel of the case which is denied to an appellate court which must deal with the matter upon paper. In such circumstances an appellate court must hesitate before upsetting the decision of the judge below. We would only upset that decision if there were the clearest indications that a sentence of incarceration was called for and where there was nothing which could properly allow the judge to regard the matter as an exceptional case.

5. This was a serious offence trafficking involving a substantial amount of dangerous drugs. It was perpetrated by a youthful but hardened offender who had already been given the benefit of treatment in a drug addiction treatment centre. There was, we are satisfied, nothing exceptional about this matter. The only proper sentence was one of incarceration. The guidelines in Lau Tak-ming indicate that where the quantity is between 10 and 50 grammes the appropriate sentence is five to eight years. The overall quantity here was 23.66 grammes, this would indicate a sentence of six years. However we must take into account the plea of guilty which reduces the sentence to one of four years. We also take into account that a radically different kind of sentence is being imposed and we are prepared to give a further credit of six months for that factor. We are satisfied that the proper sentence is one of 3½ years.

6. The Attorney-General's application, therefore, is allowed and the order of the judge is quashed and the respondent is sentenced to imprisonment for 3½ years.