THE ATTORNEY GENERAL v. CHAN CHING HO

1993, No. 9
Application for Review,

and

1993, No. 409
(Criminal)

Headnote

Sentence - Simple possession of dangerous drugs.

The Court upon an Application to Review increased a sentence of 3 years to one of 4 1/2 years following the decision in The Queen v Chiu Hing- wong Crim.App. No. 39 of 1993. It observed that since the amendment of June 1992 raising the penalty for such offences from 3 years to 7 years the courts were required to take a more serious view of such offences and that, given that the amount of drugs involved, this offence was in the top range of quantity in relation to which it would be proper to lay a charge of simple possession, the sentence of 3 years was inadequate.

IN THE COURT OF APPEAL

1993, No. 9
Application for Review

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. In this matter the respondent/applicant (referred to hereafter as the "respondent") was convicted after trial of possession of dangerous drugs contrary to s.8 of the Dangerous Drugs Ordinance and sentenced by District Judge Jackson to imprisonment for three years. It was proved that he was in possession of 112.56 grammes of a mixture containing 62.81 grammes of salts of esters of morphine. The drugs were found after a routine stop and search. At trial he contended unsuccessfully that the drugs had been planted upon him by the police officers.

2. The Attorney General now applies for review of that sentence upon the ground that it was manifestly inadequate and/or wrong in principle and the respondent appeals against it upon the ground that it was manifestly excessive.

3. Mr. Cross, who appears for the Crown, submits that the judge failed to give proper weight to the fact that on 26th June 1992 the legislature raised the penalty for an offence of simple possession from three years to seven years imprisonment. He refers also to the judgment of Silke, V.-P. in The Queen v. Chiu Hung-wong Criminal Appeal No. 39 of 1993. The two applicants in that case had each received two years of imprisonment. The first had in his possession a mixture of the narcotic content of 14.37 grammes and the second had in possession a mixture with a narcotic content of 16.31 grammes. The Court of Appeal was satisfied given the amendment of June 1992 that such sentences were proper. Silke V.-P. having referred to the previous range of sentences of nine to twelve months for simple possession went on to say:

"However, it is now clear that the legislative temper is for very much stiffer penalties and the incarceration of those in possession of dangerous drugs for a much longer period than that earlier sentencing norm and that the emphasis has moved away from the prior aim of the rehabilitation, though the latter option is not removed in the light of the retention of section 54A unamended."

Section 54A is the section which requires the court to take a drug addiction centre treatment report before sentencing.

4. Mr. Cross submitted that in the light of what he termed the "massive quantity", the sentence of three years was quite inadequate. The seriousness of possessing a large quantity of drugs was well-described by Lugar-Mawson J. in Chiu Hung-wong's case when he said:

"That is not to say however that the judge should close his eyes to the obvious dangers and temptation that the possession of a large quantity of drugs in the hands of an addict may present both to himself and the society. It is known and I would be ignoring over 12 years experience in criminal practice in Hong Kong if I ignored it, that addicts are persons who are easily tempted and who do so sell their stock of dangerous drugs to others in order to fund not only their own addiction, but also their daily living expenses. If their stock is small the risk of sale is slight, if it is large the risk is greater. Formerly the law recognised this regrettable feature of human behaviour by providing an evidential presumption based on weight or packaging that went to determine the offender's guilt. Such a presumption, going as it did to establish guilt, was unsustainable under the Bill of Rights Ordinance. That is not to say, however, that the judge when it comes to sentencing, where the question of guilt or innocence have been disposed of, should not have regard to this feature and recognise the potential harm to society that possession of large quantities of dangerous drugs poses and take the weight of the dangerous drugs possessed by the offender into account when determining the length of a sentence."

5. The amount in the possession of the respondent was indeed substantial. The sentence on a person found to have been trafficking in that amount would be in the band ranging from eight to twelve years. We remind ourselves immediately that he was found guilty only of simple possession and must be dealt with upon that basis. The gravamen of such an offence, when a large quantity of drugs, is involved is the danger which is posed to society by having such drugs "at large" in the control of an addict. The amount involved cannot but be regarded as being in the top range of quantity where it would be proper to lay a charge of simple possession rather than one of possession for the purpose of trafficking. We so observe as it indicates that this offence must be ranked among the more serious offences that could be committed by an offender convicted under s.8.

6. Mr. Buchanan, who appears for the applicant, resists the application for review and, indeed, urges the court to hold that the judge was wrong in imposing a custodial sentence. He submits that the Drug addiction Treatment Centre Report shows that the respondent would be likely to respond to treatment and that his record, although bad, is composed of offences all of which have been drug-related. He argues that the amount should not be used to gauge the period of imprisonment that will be imposed but should rather be taken as an indication of the depth of his addiction and his real need for treatment. He submits that we should have had heed to the recommendation in the report and sent the applicant to a drug addiction treatment centre.

7. We refer, as did Yang, C.J. when giving the judgment in The Attorney General v. Ho Pui-ying, Application for Review No.8 of 1993 2 to R. v. Lawrance (1980) 32 Aus.L.Rep. 72 in which Moorfeet P. said (at p.110):-

"It is well-recognized that the fixing by the legislature of a maximum sentence for a particular crime provides a legislative view of the seriousness of the crime in question. A legislative policy so indicated, as with other legislative policy should guide the court in the determination of the appropriate sentence to be imposed in a particular case. In order to give effect to this policy it will normally be necessary to reserve the maximum for the more serious cases of the crime in question with the less serious cases being dealt with by imposition of a less penalty which pays due regard to the seriousness of the class of crime, so indicated by the legislature. If there is a legislative amendment increasing the maximum sentence, this new view of the seriousness of the crime should be reflected in the sentence imposed."

8. We are satisfied that we must reject Mr. Buchanan's argument. The legislature clearly indicated to the courts that they must take a more serious view when sentencing in simple possession cases. This was a serious offence of its kind and was, as we have already said, in the most serious range of offences covered by s.8 of the Dangerous Drugs Ordinance. Having given anxious consideration of the matter we are satisfied that the proper sentence is one of four and a half years.

9. The application for leave to appeal against sentence is refused. The application of the Attorney General is allowed. The sentence of three years is varied to one of four and a half years.