R. v. SO SAI NING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.457 OF 1996

----------------------

-----------------

------------------------

J U D G M E N T

------------------------

1. The Appellant was convicted after a trial of trafficking in dangerous drugs and was sentenced to 2½ years imprisonment. He now appeals against conviction and sentence.

2. Two police officers saw the Appellant receive some money from another man. In return the Appellant was seen to hand over to this man a small object. The officers went up and stopped the Appellant and this other man from whom the small object was recovered. This was found to be a small packet containing a mixture of 0.11 grammes with 0.09 grammes of heroin hydrochloride. The Appellant's evidence was he was asleep in the rear lane and the prosecution case was a fabrication.

3. The magistrate in his statement of findings said that he determined that the officers were "quite palpably honest, accurate and reliable witnesses". He accepted their evidence. He rejected the evidence of the Appellant and he saw no reason that the witnesses should fabricate evidence against the Appellant. He found the case proved beyond reasonable doubt.

4. The Appellant appealed in person against conviction. Legal aid was granted to him in respect of his appeal against sentence only.

5. The Appellant's only complaint on conviction was there was no evidence that he sold the drug to somebody.

6. I see no merit in his appeal. The conviction was supported by evidence which the magistrate accepted. There was nothing to show that the magistrate was wrong in accepting the evidence of the police officers. The appeal against conviction is dismissed.

7. Mr Raffell for the Appellant in the appeal against sentence submitted that the sentence of 3 years imprisonment as a starting point in the circumstances of this case was too high. Having regard to the guidelines in R. v. Lau Tak Ming and Others [1990] HKLR 370 where it was laid down that the range of sentence for trafficking in dangerous drugs after a trial was 2 to 5 years for a quantity of narcotics below 10 grammes, Mr Raffell submitted that for 0.09 grammes, the starting point should be near to two years rather than towards the top end of the range. He further submitted that the magistrate had taken into consideration matters as aggravation where there was no evidence in support.

8. The magistrate in his reasons for sentence said that save the Appellant's age and family circumstances there was no mitigating circumstances. He considered the Appellant's criminal record as poor with 10 previous convictions of which one was similar. That was a conviction for trafficking in dangerous drugs in 1977 for which the Appellant was sentenced to 2 years imprisonment. He considered that this coupled with his allegations against the police precluded consideration for leniency towards the Appellant.

9. Mr Raffell submitted that there was no evidence of profit and even if the Appellant made a profit, it would not have been very much because the money that changed hands was only $100. He submitted that the starting point should be one of two years so that 6 months more than 2 years would be 25% in excess of the appropriate sentence in which case the sentence would be manifestly excessive.

10. Miss Mahomed for the Crown referred to R. v. Szeto Wah MA805/83. The appellant there was caught by police after they observed that the appellant had carried out three transactions. On a search by the police officers, he was found in possession of a packet of a mixture of 0.19 grammes with 0.05 grammes of salts of esters of morphine. On his conviction of trafficking in a dangerous drug, he was sentenced to two years imprisonment and fined $75,000. Jones J. in dismissing the appeal against sentence said that in his opinion, the appropriate tariff for offences of that nature should be between 18 months and 2½ years imprisonment. But this was before the case of Lau Tak Ming when the prevailing guidelines were those under R. v. Chan Chi Ming CA1167/78.

11. The quantity of 0.09 grammes of narcotics falls within the range of 2 - 5 years imprisonment according to the guidelines in Lau Tak Ming and it should be towards the lower end rather than the top end of the range. The magistrate's adoption of 3 years imprisonment as a starting point was more towards the top end for such a small quantity. The Appellant was 72 years old. Although he had one similar conviction for which he was sentenced to 2 years imprisonment, this was in 1977, almost 20 years ago. There was no conviction recorded against him between 1978 and 1995. Afterwards he committed within a short period of time 7 dangerous drug offences, all were simple possession for which he was fined in respect of each of them. This indicated he either had a relapse in drug addiction or his drug addiction had become more severe. In any case, to take his previous conviction in 1977 as an aggravating factor is not justified. The sentence in all the circumstances of the case should be one more towards the lower end of two years in the 2 to 5 years range because of the small quantity involved. After giving allowance for his age, the appropriate sentence should be one of 2 years imprisonment. The appeal against sentence is allowed and the sentence of 2½ years imprisonment set aside and a sentence of 2 years imprisonment substituted.