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HCMA000524/1984
Dangerous drugs - sentence for possession for trafficking of very small amount - 2 years should not be a minimum if clear record.
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
Magistracy Criminal Appeal No. 524 of 1984
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BETWEEN:-
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LEE Fook-cheung |
Appellant |
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AND
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THE QUEEN |
Respondent |
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Coram: Hon. Penlington, J.
Date of hearding: 30 August 1984
Date of judgment: 30 August 1984
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JUDGMENT
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1. This is an appeal against conviction on a charge of possession of dangerous drugs for trafficking. The amount involved was very small - .83 grammes of a mixture containing heroin - and there was no evidence of money being paid. The drugs were found on a fellow defendant who was a friend of the appellants.
2. Mr. Midgley in his well presented argument says that the magistrate has followed R v. Chan Chi ming, C.A. 1167 of 1978 as saying that a sentence for possession of a very small quantity for trafficking should be a minimum of 2 years. What the Court there said, inter alia was
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(2)
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In sentencing hard drugs (morphine, heroin and barbitmates) offenders, cases should fall into four categories depending on the quantity involved, where the quantity involved was -
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(a)
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very small (up to 30 grammes) the sentence should range from 2 to 3 years ..................... mitigating factors. Trafficking in dangerous drugs and possession for this purpose are offences of the utmost gravity .............. a bad criminal record and particularly one in which previous drug offences appear will be a factor which the Court should take into account and will usually result in a higher sentence than in the case of a man with a clear record. |
3. Here the appellant has such a bad record, including drug offences and one for trafficking in 1976 for which he received 2 years.
4. I would not take the dicta in R v. Chan Chi-ming as saying that a 2 years is a minimum sentence for trafficking any more than it says 12 years is a maximum. There are always factors other than quantity and a person may be a large-scale trafficker deserving very severe punishment but never in fact being in actual possession of the drugs at all. This was a very small amount and there was no evidence of money changing hands. If the appellant had a clear record a sentence of 18 months would have been correct. With his record I do not think 2 years was wrong in principle or excessive.
5. The appeal against sentence is dismissed.
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(R.G. Penlington) |
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Judge of the High Court |
Representation:
J.N. Midgley of Haldane Midgley & Co. for Appellant.
I.M. Duguid, C.C. for the Crown/Respondent.
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