LUI SUEN v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

( APPELLATE JURISDICTION )

MAGISTRACY APPEAL NO. 939 OF 1987

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J U D G M E N T

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1. The appellant, a 74 years' old man, was charged with an offence of possession of dangerous drug for the purpose of unlawful trafficking. The drugs in question were 4.69 grammes of a mixture of heroin. He was convicted and sentenced to 2 years' imprisonment. He now appeals against his sentence.

2. The learned magistrate in his Reasons for Sentence said he disregarded the appellant's drug dependency. It is not in dispute that the appellant has been a drug addict for 40 years.

3. In the frequently quoted case of CHAN Chi-ming and The Queen (1979) HKLR at page 494, the Court of Appeal said :

" It is proper that, where very small quantities are involved, allowance should be made for the possibility that the accused may be an addict himself, selling on a small scale in order either to gain sufficient money to satisfy his own needs, or to be supplied with drugs for his own consumption in lieu of payment."

4. The Court of Appeal in CHEUNG Lan-heuna and The Queen, Criminal Appeal No. 526 of 1984 approved a statement made by the trial judge that it is well known that the bigger drug traffickers are able to recruit the very young and the very old to assist in carrying out their drug trafficking activities. I agree.

5. In MO Kong-sang and The Queen, (1981) HKLR 610, the Court of Appeal made mention that age or personal circumstances of accused persons are factors to be considered in passing sentence.

6. Miss TOH for the appellant says she seeks a lowering of the sentence "ad misericordiam".

7. It is difficult not to sympathaze with a man aged 74 with a drug addiction of 40 years who was foolish enough to involve himself in the drug trade.

8. I cannot say the learned magistrate was wrong in the sentence he passed but having regard to the fact of the appellant's age, his long dependence on drugs, the fact that his wife and children are all in China and that he is totally dependant on social welfare, I allow the appeal, purely as an act of mercy, and reduce his sentence to one of 18 months, which I consider a very lenient sentence.