THE QUEEN v. LEE MUI-YING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL No. 489 OF 1988

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J U D G M E N T

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1. The appellant pleaded not guilty to the first charge and pleaded guilty to the second charge in the Magistrates court one of possession of dangerous drugs for the purposes of unlawful trafficking, contrary to section 7(1) of the Dangerous Drugs Ordinance, and the other of possession of Part I Poison, contrary to the Pharmacy and Poisons Ordinance.

2. At the conclusion of the trial the magistrate found her guilty on the first charge and sentenced her to imprisonment for 18 months together with a fine of $4,000 on that charge and to a sentence of two months on the second charge but the learned magistrate ordered that sentences on the second charge be served concurrently with that on the first. She originally appealed against both conviction and sentence but some week ago abandoned her appeal against conviction.

3. At the time of her conviction she had a previous record of convictions dating back to 1973, some of which were for possession of dangerous drugs. The last conviction was on October 1986 for a dangerous drugs offence and she was sentenced to Detention in a Drug Addiction Treatment Centre.

4. The learned magistrate in his Reasons for Sentence indicates that he took into account the matters mitigated on her behalf by Mr. LI, who appeared for her then and again for her today.

5. At the hearing of this appeal on the 5th October, Mr. LI confined his submission on the question of sentence to a plea that the appellant be dealt with on humanitarian grounds, conceding that the sentence imposed by the learned magistrate was in the recognised tariff range.

6. The appellant was pregnant at the time of her sentence and that matter was brought to the attention of the learned magistrate who in his Reasons for Sentence said: "this I understand there is no problem with the Defendant keeping the child with her in prison until her discharge". On the 5th of October Mr Li was under the impression that the prison rules did not allow the appellant to have her baby with her. I therefore adjourned the case until today so that inquiries could be made regarding the baby. I notice that the appellant is here before me today with the baby in her arms.

7. Mr. Wong for the respondent has drawn my attention to Rule 21 of the Prison rules which reads as follows:

"the child of a female prisoner may be received into prison with its mother and kept during the normal period of lactation and any child so admitted shall not be taken from its mother until the medical officer certifies that it is in a fit condition to be removed'

8. On the 30th September there was a suggestion that because of the condition of the baby's health, proper medical treatment might not be able to be provided for her. Mr. LI however does not pursue that matter today.

9. I had thought that if the magistrate imposed the sentence of 18 months believing that there was no problem as regards the defendant keeping the child with her in prison and that was not the real situation, then I would have reduced the sentence on humanitarian grounds. As the information before me now shows that the magistrate was right in his belief there is nothing before me as to the circumstances of either the appellant or her child different from the circumstances disclosed to the learned magistrate I see no reason to interfere with this sentence.

10. I therefore dismiss the appeal.