THE QUEEN v. CHAN KIT FAI

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JUDGMENT

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Power, J.A.:

1. The following is the majority judgment of the court.

2. The applicant faced a charge that on the 11th of December 1990, outside No.1-3 Yin Chong Street, Mongkok, Kowloon, he had in his possession a dangerous drug, namely 81.87 grammes of a mixture containing 43.69 grammes of salts of esters of morphine, for the purpose of unlawful trafficking therein. He pleaded not guilty to that charge and was after trial before Deputy Judge Davies in the District Court found guilty, and sentenced to imprisonment for six years. He now appeals against that sentence.

3. The facts were simple. He was stopped and searched by a police party and the drugs were found in a plastic bag in the pocket of his jacket. He contended at trial that he was unaware of the contents of the plastic bag. The trial judge did not accept this and, being satisfied that the evidence established that he was aware of the nature of the contents of the bag, he found him guilty.

4. The trial judge, before sentencing, sent for a training centre report which indicated that the applicant was suitable for training centre. When sentencing, the trial judge said:

5. Mr. Macrae who appears today for the applicant, in his Grounds of Appeal urges that the sentence of six years' imprisonment was manifestly excessive and wrong in principle in that insufficient weight had been given to the fact that the applicant was 19 years of age at the time of the commission of the offence, that his father had died whilst he was on remand, and that there was a positive recommendation that a period of disciplinary training reinforced with after-care supervision would be beneficial to him.

6. The trial judge was aware of the age of the applicant as he made plain in his reasons. He was also, it seems clear, aware of the unfortunate death of the applicant's father as he expressed sympathy for the applicant's family. He was also clearly aware of the recommendations that were made in the training centre report.

7. As to the question of age, the trial judge was in our view right not to regard the applicant as a child or very young person. He was clearly a person of some maturity and, furthermore had a criminal record which included the serious offence of robbery.

8. The death of the applicant's rather and the consequent sorrow and hardship caused to the applicant and his family while a matter of concern is not something which, given the seriousness of the offence, would warrant us disturbing the sentence of imprisonment imposed by the trial judge.

9. It is correct that the intake officer was satisfied that the applicant would benefit from a period of detention in a training centre. This is however no more than it states itself to be, i.e. a recommendation by the intake officer. While the trial judge must bear such recommendations in mind, they can in no way inhibit him if he is satisfied that a sentence of imprisonment is called for. In this case, the trial judge having considered all of the circumstance, was satisfied that he was required to impose such a sentence. Mr. Macrae referred to The Queen v. YU Chun-hoi, Criminal Appeal No. 351 of 1990, in which the facts were not dissimilar. In that case, the court was satisfied that the applicant, who was younger than the applicant in the present case, must, given that the offence involved a substantial quantity of dangerous drugs, be sentenced to imprisonment. The court pointed out that it was required to consider not only the circumstances of the offender but also the interests of the society. Possession of dangerous drugs for the purpose of unlawful trafficking is a pernicious offence which claws at the very fabric of our society. As this court has already indicated only in very exceptional cases will a person of the age of 19 convicted of an offence involving a substantial quantity of drugs for the purpose of unlawful trafficking not be sentenced to a period of imprisonment.

10. Nothing has been urged which indicates that the sentence was either excessive or wrong in principle and the application for leave to appeal against sentence must therefore be dismissed.