HKSAR v. CHOR LUI

HCMA 535/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 535 OF 2001

(On appeal from TMCC 4186/2000)

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J U D G M E N T

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Hon Lugar-Mawson J:

1. The appellant, Chor Lui, appeared before Mr John Glass, Permanent Magistrate, sitting in the Tuen Mun Magistracy on 26 April of this year, along with two other defendants. He faced one charge of trafficking in a dangerous drug contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The allegation being that, on 23 December 2000, inside a discotheque at Pat Heung, New Territories, he unlawfully trafficked in a dangerous drug.

2. He was represented at trial by counsel. He pleaded guilty to the charge and admitted the facts when they were read to the Magistrate. The prosecution produced a Government Chemist Certificate showing that the dangerous drugs were two hand-rolled cigarettes containing between them 0.24 grammes of herbal cannabis.

3. The appellant has three previous convictions, two for possession of dangerous drugs, the other is for wounding. He admitted his criminal record.

4. Briefly, the facts were that one of his co-accused approached the appellant in the discotheque when the co-accused had a customer with him. That customer was an undercover woman police officer. This was at about 5 minutes past midnight on 23 December 2000. As a result of the 2nd defendant's request to the appellant for cannabis, the appellant asked how much was required. The undercover police officer, hearing the conversation, asked how much the price of each "roll-up" cigarette of cannabis was. The appellant said, among other things, that it was $30 for two roll-ups. He then took out a plastic bag, took out two "roll-up" cigarettes of cannabis and gave them to the police officer. He received $100 in marked money from her and gave her $70 change.

5. In mitigation, the Magistrate was told that the defendant was 23. He had been born in China. He came to Hong Kong when he was 8. He was the only child of the family living with his parents. Because his father was unemployed, he supported his family. He was also told that, after his arrest, the appellant obtained employment as a decoration worker, earning $250 a day.

6. The Magistrate was also told in mitigation that the appellant had been approached by the discotheque in question and asked if he wished to make extra money. He said that he did and was offered $400 a day to traffic in dangerous drugs at the discotheque. The Magistrate was also told that the appellant had started doing this on the day of his arrest.

7. The Magistrate was reminded that the drug involved was herbal cannabis and reminded of the sentencing authorities for trafficking in cannabis. He was also reminded that the amount of dangerous drugs involved was small.

8. After hearing the mitigation, the Magistrate remanded the appellant in custody for reports. He considered these on 10 May. He was told in them that the background report was favourable and that the defendant was considered to have good family support. The Magistrate was urged to pass a suspended sentence on the appellant.

9. In the result, the Magistrate sentenced the appellant to 2 months' imprisonment for the offence, after having taken a starting point of 3 months' imprisonment. He gave the appellant a one-third discount on his sentence for his guilty plea. He found no other factors to mitigate the sentence further and noted, as he had to, that the appellant had two previous convictions for possession of dangerous drugs.

10. In his reasons for sentence, the Magistrate reminded himself that the defendant had been convicted of trafficking in dangerous drugs in a place where young people congregate and where drugs are found, and that he had done so for profit. He reminded himself that it has been said many times by appellate courts that it is the 'foot soldiers', the pedlars, who allow the 'big fish' to operate and make substantial profits. He found this to be a different situation from a case where a young man might be convicted of trafficking because he had shown an intent to share drugs with a friend without any financial advantage. He took the view that even though the quantity of the drugs was small and the drug involved was at the bottom of the scale of severity, it was nevertheless a serious matter, especially so when the defendant had been caught inside a discotheque catering for young people. He took the view that an immediate custodial sentence was appropriate and that a suspended sentence, or indeed any other alternative sentence, was inappropriate.

11. Before me, it is alleged that the sentence was excessive for such a small amount of herbal cannabis, particularly when compared with the sentences passed on the appellant's co-defendants. The 1st defendant, at trial, a man called Chu Ka-yi, was charged with trafficking in a dangerous drug together with the 2nd defendant, at trial. The drug was ketamine. The 1st defendant pleaded guilty to simple possession and was convicted, and sentenced to serve 80 hours of community service. The 2nd defendant, at trial, whose name was Kwong Kin-man, was convicted of five charges of trafficking in a dangerous drug and two charges of unlawful sale of Part 1 poisons. He pleaded guilty to these offences and was sentenced to 2 months' imprisonment on the 1st to 5th charges, and 1 month's imprisonment on the 6th to 7th charges, concurrently. I believe that the dangerous drugs involved in his case were herbal cannabis and ketamine.

12. It was held in Attorney-General v Tuen Shui Ming & Another [1995] 2 HKCLR 129, that the tariff for possession of cannabis resin for the purpose of unlawful trafficking, when the amount is under 2,000 grammes, is a sentence of imprisonment of up to 16 months. The Court of Appeal commented that cannabis resin has an average concentration of tetrahydrocannabinol about four times higher than the average found in herbal cannabis and that a sentencing judge must adjust the tariff when dealing with herbal cannabis.

13. Here the appellant was convicted of trafficking in 0.24 grammes of herbal cannabis. On a strict mathematical approach, if herbal cannabis is four times weaker than the resin, the benchmark tariff sentence should be 4 months for under 2,000 grammes of herbal cannabis.

14. Although the amount in the present case was small, the offence was serious. There is no sentencing scale for trafficking in under 2,000 grammes. Two months' imprisonment after a plea of guilty appears to be within the tariff and within the sentencing discretion of the Magistrate. It is certainly not the policy of the courts in Hong Kong to go soft on dangerous drug offences involving cannabis in either herbal or resin forms.

15. On the disparity argument, as the 1st defendant at trial was convicted of simple possession, the tariff set out in Tuen Shui Ming does not apply. It is correct that the 2nd defendant at trial was also sentenced to 2 months' imprisonment for five offences, but the Magistrate had to take the totality principle into account in his case. It appears that most of the offences that the 2nd defendant was convicted of involved small amounts of ketamine, but, given the number of his offences, the sentences he received appear to be too light.

16. However, in relation to the present appellant, I do not agree that his sentence was manifestly excessive. As I have said already, trafficking in dangerous drugs of any kind is a serious offence. In this case the defendant was engaged in the sale of cannabis in its herbal form, in "roll-up" cigarettes, as a commercial activity in a discotheque. I take note of the fact, as the Magistrate did, that this is a place where impressionable young people congregate. To put it bluntly, the appellant was preying on their credibility. His criminal record shows that he had involved himself in dangerous drug activities in the past and is not a first-time offender.

17. The Magistrate gave a one-third discount for the appellant's plea of guilty to the offence. This is in accordance with accepted sentencing principle and takes into account the appellant's professed remorse.

18. In view of what I have said, it follows that the appeal against sentence is dismissed.