R. v. TANG HIU TUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.203 of 1996

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J U D G M E N T

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1. The Appellant was convicted after he pleaded guilty to one charge of possession of dangerous drugs. The amount involved was 54.77 grammes of a mixture containing 7.79 grammes of salts of esters of morphine. He was sentenced to 18 months imprisonment. He now appealed against sentence.

2. The drugs were found in two packets on the person of the Appellant when he was stopped and searched by patrolling police officers. There was no other evidence regarding the circumstances of his possession of the drugs.

3. Mr Macrae for the Appellant submitted that the sentence was manifestly excessive for a case of simple possession of dangerous drugs. He referred to a number of cases in the Court of Appeal which were decided after the penalty for simple possession of dangerous drugs was increased from three years to seven years.

4. In Lee Siu Lung, Crim. App.529/94, the appellant was sentenced to two years for possession of a mixture of 48.98 grammes with 18.28 grammes of salts of esters of morphine and nine months for possession of a mixture of 3.37 grammes containing 1.23 grammes of salts of esters of morphine. The Court of Appeal held that the judge was entitled to consider the latent risk factor of the drugs going into the hands of the public but not entitled to take the view that possession of that quantity for personal consumption and some for trafficking. Simple possession had been charged and the judge was required to sentence upon that basis. The two year sentence was reduced to one year but the nine months sentence remained.

5. In Tam Man Kit, Crim App.656/93, the appellant was in possession of 50 straws containing 12.47 grammes of a mixture containing 5.82 grammes of esters of morphine and 70 straws containing 23.19 grammes of a mixture containing 9.10 grammes of esters of morphine. He was sentenced to two years on each totalling four years. It was held that the quantity of straws and the risk that they would get into the hands of the public are important considerations. However, a sentence for possession could not be justified if it matched or exceeded a sentence which would be passed for trafficking in accordance with the guidelines of Lau Tak Ming. The Court of Appeal considered if the offences were trafficking, the sentence of two years for 5.82 grammes of narcotic was not lenient after a plea of guilty but for simple possession it was manifestly excessive. The sentence of two years was reduced to 12 months on the basis of 18 months for possession after a trial. As regards the quantity of 9.10 grammes of narcotic, the sentence was varied to 18 months adopting a starting point of 2½ years after trial.

6. In Chiu Chung Wong and anor [1994]1 HKCLR 184, a two year sentence for simple possession of a mixture of 28.29 containing 14.37 grammes of salts of esters of morphine after plea and two years imprisonment for a similar case of possession of 30.41 grammes of a mixture containing 16.31 grammes of salts of esters of morphine were considered appropriate having regard to the considerable narcotic contents in each case. The risk of danger to the public was considered to be substantial.

7. The effect of these authorities is that in sentencing possession cases it is relevant to consider the quantity of dangerous drugs and the latent risk which the drugs in the possession of the accused might pose to the public and in this regard, the make up of the drugs e.g. the nature of packaging, the number of packets or straws containing the drugs and the circumstances where the accused was arrested are matters to consider.

8. Mr Wong for the Crown submitted that the sentence of 18 months might have been harsh but it was not manifestly excessive. Mr McRae replied that if the sentence was not in line with the authorities it should be rectified. The total amount of narcotics in this case was 7.97 grammes and having regard to the authorities and having regard to the drugs being in two packets only, the appropriate starting point after trial for simple possession of this quantity should be one of 21 months. Given the plea of guilty and the normal trend in these Courts is to give a discount that would encourage pleas rather than trials, the sentence of 21 months is reduced to 15 months to reflect the plea. The appeal against sentence is accordingly allowed. The sentence of 18 months is set aside and a sentence of 15 months imprisonment substituted.