THE QUEEN v. CHAN KAM CHEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 114 OF 1990

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BETWEEN

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JUDGMENT

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1. The Appellant was charged in the Magistrate's Court with the offence of possession of a dangerous drug for the purpose of unlawful trafficking contrary to Section 7 of the Dangerous Drugs Ordinance.

2. On being asked to plead, he admitted possession but contested the allegation that the purpose of his possession was unlawful trafficking.

3. The learned magistrate after hearing evidence relevant to that issue, convicted him as charged and sentenced him to imprisonment for 3 years.

4. The Appellant now appeals against that sentence. The offence was committed on the 9th November 1989 when the Defendant had in his possession ten plastic nags containing a mixture weighing 37.67 grammes of which the salts of esters of morphine content weighed 1.76 grammes.

5. He had a record of previous convictions for drug offences and the sentence accords with the guidelines laid down by Chan Chi Ming. Miss Sze Kin, however, submits that the magistrate has failed to give a discount of some kind in recognition of the fact that the Appellant did not put the prosecution to full proof of the charge. She submits, in effect, that as he tendered a half plea of guilty, he should have received half the usual discount for a full plea of guiluty.

6. She did not seek to call in aid the guidelines in Lau Tak Ming, (Criminal Appeal 230 of 1989) because she felt that the decision in Cheung Chow Fai, (Criminal Appeal 425 of 1989) prevented her from doing so. In Cheung Chow Fai the Court of Appeal said that it is settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence. The practice prevailing on 9th November 1989 was the practice laid down by Chan Chi Ming. However, in this case, the learned Magistrate in his statement of findings after referring to the fact that the guidelines in Chan Chi Ming indicated a sentence between three and five years imprisonment, went on to say:

 

"Since the lowest point of the guideline sentence was within my sentencing range I imposed an immediate three year prison sentence upon him.

 

At the conclusion of the case and in open court I enquired of the Crown why cases involving over 30 grammes of mixture were now appearing in the Magistracy instead of, as hiterto, in the District Court were the sentencing range is more appropriate.

 

I was told that a decision had been made by the A.G.'s department to bring this sort of case in the lower courts because of the continued fall in purity levels of No. 3 heroin.

 

The difficulty with that is that Chan Chi Ming makes no reference to purity levels and Magistrates are placed in some difficulty with amounts over 30 grammes if they are to follow Chan Chi Ming. However, I took the view that if that case was to be held to lay down sentencing guidelines which are nowadays considered inappropriate by the Crown then the Court of Appeal and not the Magistracy was the proper place for that conclusion to be reached."

 

7. That was written by the Magistrate on the 21st January 1990. The Appellant was convicted and sentenced on 9th January 1990. On 4th January 1990, the Court of Appeal in Lau Tak Ming had heard the submissions regarding falling purity levels of No. 3 heroin. The material put before the Court prompted the acceptance of the new guidelines set out in the judgment handed down on 29th May 1990. Quite clearly, had the Magistrate known that a charge of sentencing practice was about to occur "in the proper place" he would have decided to allow the Appellant any benefit resulting from that change.

8. Although the learned Magistrate sentenced in accordance with the sentencing practice being followed at the time of commission of the offence, it seems to me that if the Magistrate had known on 9th January 1990 that the Court of Appeal would accept the submissions made to him about purity levels, he would have been influenced by that and would have applied those new guidelines particularly if he saw that their application would benefit the Appellant. It is solely for that reason, and not for the discount submission, that I allow the appeal, quash the sentence and substitute a sentence of imprisonment for 2 years.