THE QUEEN v. HO KA-FU

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JUDGMENT

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Yang, J.A.:

1. The applicant pleaded guilty to a charge of possessing 44.31 grammes of a mixture containing 9.88 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein.

2. He is 24 years of age and has two previous convictions, one of which was similar.

3. The trial judge felt unable to give him any credit for his plea of guilty as the drug was found on his person. In passing a sentence of six years, the judge noted that the applicant had committed a similar offence 18 months previously and that he did not appear to have learnt anything at all from his previous conviction. He went on to say:

"Had it been a first offence, it would have merited an immediate sentence of between three to five years in accordance with the guidelines laid down in the case of Chan Chi Ming H.K.L.R. (1979) 491. I could give the Accused no credit for being a man of previous good character and following those said guidelines I considered that, in all the circumstances, a higher sentence than the tariff was well merited."

4. This Court said in Chan Chi-ming⁽¹⁾ that a bad criminal record would usually result in a higher sentence than in the case of a man with a clear record. The guideline laid down in that case for possession of a small quantity of dangerous drug (about 30 to 150 grammes) is a range of three to five years. In our view the learned judge has not given sufficient regard to the relatively small quantity of the drug but has placed too much emphasis on the applicant's record.

5. In all the circumstances we think that an appropriate sentence is one of five years. We accordingly treat this application as an appeal, allow the appeal and reduce the sentence of six years to five years.

(1)    H.K.L.R. (1979) 491