R. v. LAU KAM CHEONG

IN THE COURT OF APPEAL

1996, No. 29
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant appeals against the sentence of three-and-a-half years' imprisonment imposed upon him for possession of dangerous drugs.

2. The applicant was a passenger in a car which was stopped by the police. He was searched and found to be in possession of the dangerous drugs referred to in the charge namely 80.82 grams of a mixture containing 14.25 grams of heroin hydrochloride. He immediately admitted that the dangerous drugs were his. However he claimed that they were for his own consumption. Perhaps surprisingly he was only convicted of being in possession of dangerous drugs having regard to the quantities involved.

3. It would appear from the judgment of the trial judge Her Honour Judge Wong that she was labouring under some misapprehension concerning the application of the guidelines in Lau Tak-ming (1990)2 HKLR 370. At p10 of the appeal bundle she refers to a sentence of 8 to 10 years being an appropriate sentence if the applicant had been convicted of trafficking having regard to the quantity of the dangerous drugs.

4. This is simply not right. What appears to have happened is that the judge has mistakenly taken cognisance of the overall quantity of the substance rather than its narcotic content.

5. Having said this the narcotic content is by no means negligible. A sentence of something in excess of five years' imprisonment would have been appropriate had the applicant been convicted of trafficking in the quantity after trial.

6. A sentence of three-and-a-half years' imprisonment for simple possession is therefore clearly manifestly excessive and wrong in principle. Having regard to the sentences imposed in R. v. CHIU Hung-wong & Another (1994) 1 HKCLR 184 andR. v. LEE Siu-lung (unreported) Cr.App.No. 529/94 we consider that the sentence should have been two-and-a-half years' imprisonment. This takes into account the strength of the mixture and the latent risk of the applicant trafficking in the dangerous drugs. The larger the overall quantity even though weak in narcotic content the greater the risk of trafficking in unstable hands.

7. The application is allowed and treating it as the appeal a sentence of two-and-a-half years' imprisonment is substituted for the sentence of three-and-a-half years' imprisonment.