TAM MAN KIT v. R.

IN THE COURT OF APPEAL

1993, No. 656
(Criminal)

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J U D G M E N T

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1. Mortimer, J.A. (giving the judgment of the Court) Originally the applicant was charged with two offences of trafficking in dangerous drugs but when he appeared before His Honour Judge Lugar-Mawson on 12th October 1993 he pleaded guilty to the lesser offences of possession of the same drugs. These pleas were accepted by the Crown. On 3rd November 1993 he was sentenced to 2 years imprisonment on each count, consecutively, making 4 years in all.

2. The simple facts of the 1st charge are that on 14th August 1992 the applicant was seen sitting on a row of seats at the entrance to a restaurant. He waited there for 10 minutes. When he got up to leave he was stopped and 50 straws were found on him in which there were 12.47 grammes of a mixture containing 5.82 grammes of salts of esters of morphine. He was arrested and later released on bail.

3. The second offence took place on 2nd September 1992 when he was on bail. The applicant and another went to the Chicago Theatre and entered a toilet together. They were arrested. The applicant had on him 70 straws in which there were 23.19 grammes of a mixture containing 9.10 grammes of salts of esters of morphine.

4. The judge gave elaborate reasons for the sentences he passed. These can be summarised. He reviewed the applicant's background with a history of offending. He had taken drugs but was not dependent on them and was not suitable for treatment in an addiction centre.

5. He accepted that with the increase in the maximum sentences passed by the legislature it was intended that the courts should pass heavier sentences than before in appropriate cases. He considered the cases of Chiu Hung-wong and Choi Tung-cheung 1993 Criminal Appeals Nos.39 and 40 and thought that these cases equated in severity and that adjustment of sentences to take into account the lower quantity of drugs in each of the instant offences would be "mere tinkering". He was of the opinion that the circumstances were such that the drugs were a potential danger to the public, that the personal circumstances of the applicant did not warrant a reduction of the 2 years he had in mind and that the plea of guilty was taken into account in the 2 years sentence. Also, that the totality principle did not require a reduction in the total of 4 years and that the principle that the applicant should not be sentenced for "unproved trafficking" did not assist him.

6. Mr Andrew Macrae, who appears for the applicant, submits that on each charge, considering the amount of drugs involved, the sentences were manifestly too long and that these sentences in themselves were inconsistent as the 2nd charge involved nearly twice the quantity specified in the 1st charge. He further submits that although the judge acknowledged the "totality principle" he failed to apply it in circumstances where he ought to have done so and that the 4 years total is also excessive. Mr Macrae says that the length of sentence. is especially excessive having regard to the pleas of guilty, the sentence approved in this Court in Chiu Hung-wong (supra) and the sentences which would be appropriate for trafficking of the same quantities.

7. He concedes that earlier guidelines for possession no longer apply since the increase in the maximum sentence, and that the most important consideration on sentence is the quantity of drugs involved and the risk that they will get into the hands of the public.

8. In the two cases referred to above, this Court recognised that the most important factor in simple possession cases is this risk. Silke V-P in giving the judgment continued:

"Provided that, when the Crown, as it did here, charges only a section 8 offence the sentencing court bears in mind that there is still no offence known to law as 'unproven trafficking', courts can, in our judgment, properly give effect to the intentions of the legislature by imposing sentences higher than the norm which pertained before 26th June 1992 and which take into account the quantity of the drug concerned."

We agree that the risk is the most important matter in sentencing. This will often be related to the quantity and the circumstances of the possession. Equally important is that courts should not sentence those convicted of simple possession as if they had been convicted of trafficking. Even if there is a high risk of the drugs concerned falling to the hands of the public, possession is a lesser offence and the sentence should reflect this.

9. The circumstances of possession vary so greatly that it would be difficult for this Court to suggest guidelines for sentence for this offence. However, a sentence for possession could not be justified if it matched or exceeded a sentence which would be passed for trafficking in accordance with the guidelines in R. v. Lau Tak-ming [1990] HKLR 370.

10. In the instant case the judge was obviously right when he recognised the danger that these drugs would fall into the hands of others. Also he was right to take into account the fact that the second offence was committed when on bail. This is obviously an aggravating matter. He was wrong, however, in thinking that to reduce the sentence in order to reflect the difference in quantity between the cases cited and this case would be "mere tinkering". A judge is entitled to adjust sentences. Indeed, if there are factors to be taken into account, justice requires that he should do so. This is the court which will refrain from tinkering with a sentence passed by a judge below.

11. It is difficult to avoid the conclusion that the judge here passed sentences which he would have passed if the applicant had been convicted of trafficking. The guideline in Lau's case applicable on the 1st charge is 2-5 years for up to 10 grammes of salts of esters of morphineafter trial.

12. On a plea of guilty of trafficking in 5.82 grammes of salts of esters of morphine a sentence of 2 years imprisonment would not be lenient. For a plea of guilty to possession, even with the risk of distribution, it is manifestly excessive. Taking into account all the circumstances the starting point should have been 18 months and for the plea it should have been reduced to 1 year.

13. The second offence was more serious. Not only was the quantity greater but the offence was committed while the applicant was on bail. A heavier sentence than on the first charge was justified. The proper starting point in this charge is 2 1/2 years reduced for plea to 18 months.

14. If the sentences are consecutive this makes 2½ years in all. This total is not excessive and reflects the criminality. It should not be further reduced.

15. In the circumstances we are satisfied that the sentences passed by the judge were both manifestly excessive and wrong in principle. We allow the application, treat the application as the appeal, allow the appeal and substitute sentences of 1 year on the 1st charge and 18 months on the 2nd charge consecutive, making 2 1/2 years in all.