ATTORNEY GENERAL v. LAM KWAN-FATT

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, LAM Kwan-fatt, was convicted after trial in the District Court of possession of 263.15 grammes of a mixture containing 51.47 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

2. The case arose as the result of a raid by a police party on premises of 161 Queen's Road East, Wan Chai on the 25th of March 1985. Within the premises there was found the applicant himself, two sisters and brother and another man called CHUNG Hak-ming.

3. The police party searched the bedroom where the applicant was found and they discovered therein a paging device, plastic phials and some plastic bags containing some substance suspected to be dangerous drugs. Further the search of the bed itself revealed the presence of two sets of weighing scales, 200 empty plastic packets and 30 $100 notes.

4. On a canopy outside the bedroom window, which, it is common ground, was the bedroom occupied by the applicant when at home, was found a plastic bag inside which was another bag containing 26 packets of dangerous drugs which contained the major portion of the drugs laid in the charge. The applicant himself was searched and on him was found $2,500 in cash.

5. It was the case for the Crown that he was cautioned and that he admitted that all these things were his. The ease for the defence was fought on the basis that these were not his property at all but belonged to CHUNG Hak-ming who had brought them to those premises that day.

6. The applicant was tried on the 24th of July 1985 and, upon conviction, Judge Roy, imposed a Drug Addiction Treatment Centre order.

7. The Attorney General now applies for revision of that sentence on the basis that it is manifestly inadequate and wrong in principle.

8. In making his order Judge Roy relied upon five particular circumstances. He clearly had in mind that the possession of this quantity of drugs for the purpose of trafficking would, in the absence of something exceptional in the nature of mitigation, normally attract a prolonged prison sentence. He pointed out that according to the Probation Officer's Report (which was before him) the applicant had been an addict for about 9 months and had not had any treatment compulsory or voluntary following upon his becoming addicted. He noted that the applicant was found to be unsuitable for admission to Training Centre or Detention Centre because of drug dependence but was considered suitable for admission to Drug Addiction Treatment Centre.

9. Thirdly he said that it was more desirable that the defendant be cured of his habit, if it were possible, than that he should be sent to prison for a long period where he would associate with other criminals and thus that rehabilitation might become impossible.

10. Fourthly, he said that the report from the Commissioner's Intake Officer had shown a sense of remorse on the part of the applicant for his misdeed and a determination to quit his bad habit.

11. Finally, he pointed to the age of the applicant who, at the time of this offence, was just 20 years and the fact that he had been out of trouble for 2½ years.

12. The applicant has a criminal record. He received a 3 months' sentence suspended for a year in 1981 following a conviction for theft. In 1982 he was found guilty of burglary and robbery. There was some confusion as to just how these 2 cases were dealt with but we accept the explanation eventually given by Mr. Ford who appeared for the applicant this morning and who, on instructions then taken, told us that following upon his arrest for burglary the applicant pleaded not guilty and then was liberated on bail. The burglary charge had been taken before a magistrate in the Causeway Bay Magistracy. Subsequently, while on bail, he was charged with robbery and an order was made to have those cases heard in consolidation in the District Court.

13. On the 13th of December 1982 these charges were dealt with and a Detention Centre order was made in respect of both charges. That means, of course, that this particular form of treatment has been tried with this applicant and has not been effective.

14. Clearly, this is a case in which a substantial sentence of imprisonment would normally be imposed. In such a case it would necessary for a sentencing judge or magistrate to base an order of the kind that was made upon something exceptional in the background circumstances put before him.

15. We think that it may be that the District Judge in the present case did not pay sufficient attention to the substance of the Probation Officer's Report. When referring to the fact that the applicant had showed remorse he would appear to be relying principally upon the opinion of the Intake Officer in respect of the Drug Addiction Treatment Centre. That opinion is to a degree in collision with what appears in the Probation Officer's Report, in paragraphs two and seven, where, according to that officer, the applicant, when interviewed, informed him that, while he was on bail subsequent to his arrest on the present charge, he had smoked as much of the drug as he could with a view to asking for a chance to be sent to the Drug Addiction Treatment Centre.

16. The importance of that would seem to be that it militates against the idea that we have here a remorseful person simply seeking to amend his ways and to adopt a different pattern of life.

17. We are aware that the applicant has in the past had the benefit of a supportive family. We have listened with sympathy to the plea made by Mr. Ford who stresses this aspect of the case.

18. It is indeed a remarkable family. Here is a mother, obviously in a lowly position in life and employed in a lowly occupation, who has been able to hold together a family including two daughters, one of whom has been able to achieve some form of University or similar training in England and another being employed as a primary school teacher. The two boys in the family seem not to have done so well but the third daughter, still at school, shows something of the promise of her sisters.

19. Although the family has obviously been supportive and obviously would favour Drug Addiction Treatment for the erring son, he is regarded by his mother as the "only black sheep" of the family and even his younger sister, who is said to be very close to him, and is clearly sympathetic with him, was not hopeful of his chances of rehabilitation.

20. We would have thought that if this were a case in which a charge of possession for the purpose of trafficking was based solely upon the possession by the respondent of this quantity of the drug we might have taken a different view. But we have evidence of exactly the kind and variety of equipment which would designate the applicant as a trafficker in the most practical and active sense, possessing the necessary equipment to engage upon the trade.

21. In the upshot we do not think that the District Judge who gave the most careful attention to the case, and from whose reasons we depart, in view of what I have said, with a feeling of regret did not pay sufficient attention to those aspects of the background of the applicant displayed in the probation report to which I have just now drawn attention.

22. We cannot regard this as a case in which the tariff indicated in CHAN Chi-ming⁽¹⁾ could reasonably be departed from. In saying that, I must also stress, in justice to the judge, and indeed for the benefit of any judge who takes similar care with the difficult business of passing sentence in such cases, that we do not depart from what was said in CHAN Chi-ming itself to the effect that that case proposes guidelines only from which, in suitable eases, any judge or magistrate may depart. In a subsequent case this court has pointed out that these guidelines are that only and are not to be regarded as a straight jacket.

23. We think, however, that in the present case the sentence imposed was, for the reasons given, both manifestly inadequate and wrong in principle and we propose therefore to interfere. We set aside the Drug Addiction Treatment Centre order substitute therefor an immediate custodial sentence. The requisite range in CHAN Chi-ming would be 5 to 8 years, but in virtue of the fact that this is a case taken upon review, and attending also to what has been put forward in mitigation by Mr. Ford, who has said everything that could be said on behalf of the applicant, we impose a sentence of 3 years' imprisonment.

(1) (1979) H.K.L.R.491