THE QUEEN v. TO Shing

IN THE COURT OF APPEAL

1987, No. 149
(Criminal)

_______________

_______________

JUDGMENT

_______________

Power, J.A:

1. The applicant TO Shing is aged 47 and is a farmer in the New Territories. He was charged with possession of a dangerous drug for the purpose of unlawful trafficking and was after trial convicted of that offence and sentenced to 11 years. He now appeals against that sentence on the ground that it is wrong in principle and manifestly excessive and that sufficient consideration was not given to mitigating factors.

2. The charge stated that between the 1st of December 1985 and 25th July 1986 at Ha Pak Nai Village, Lau Fau Shan in the New Territories he had in his possession a dangerous drug, namely 80,728 tablets containing 10,129.80 grammes of methaqualone, for the purpose of unlawful trafficking therein. The facts were simple. There was a search of his premises and the drugs were discovered buried in the land surrounding his house.

3. Mr. Macrae who appears for him today has referred us to the case of Attorney General v. CHAN Chi-man[1] in which a tariff was suggested for offences of this kind. The suggested tariff when dealing with methaqualone pills is set out in a table as follows:

"Rough and ready though this may be, we think that the right course is to assume that any tablet found to contain any proportion of methaqualone shall be deemed, for the purposes of sentence, to contain the dosage that would be present in a proper Mandrax pill, that is to say, 250 milligrammes per tablet.

On this basis, the suggested tariff would be as follows:

(a) up to 2000 tablets - as the court things fit;

(b) over 2000 tablets - 6-12 months;

(c) over 4000 tablets - 12-24 months

(d) over 8000 tablets - 2-3 years;

(e) over 12000 tablets - 3-4½ years;

(f) over 24000 tablets - 4½-6 years;

(g) over 36000 tablets - 6 years upwards."

4. It is Mr. Macrae's submission that the trial judge wrongly applied this tariff. Mr. Macrae suggests several ways of approaching the application of the tariff but it is not necessary for us to consider all of these. The trial judge when sentencing applied the tariff to reach the sentence of 11 years for 50,000 tablets. Although he does not so state it seems clear that he did so by extending the basis of the last step. i.e. 1½ years for 12,000 tablets, which produces a figure of just over 11 years. We trust that when dealing with the matter upon this basis, we have not misconstrued his approach. Such an approach fails to take into account that the table is a progressive one in which as the number of tablets increases the applicable period of sentence became proportionately less. It commences by using divisions of 2000 tablets and then moves to 4000 tablets and then to 12000 tablets while the period of sentence applicable increases by a much smaller proportion.

5. Applying the sort of progression used in the table we are satisfied that 80000 tablets should attract a penalty of imprisonment for 9 years.

6. We are further satisfied that, in circumstances of this case, 9 years would have been a correct sentence. We say that bearing in mind that the applicant was storing the tablets and was not actively involved in selling them.

7. Mr. Macrae also asked us to bear in mind that the overall quantity of methaqualone involved was only 10,139 grammes and to take into consideration the table which applies to possession of methaqualone powder which, if applied to that amount, would result in a sentence of just over 6 years. He makes this submission despite the words used in CHAN Chi-man when the Chief Justice said:

"the right course is to assume that any table round to contain any proportion of methaqualone shall be deemed, for the purposes of sentence, to contain the dosage that would be present in a proper Mandrax pill, that is to say, 250 mg. per tablet."

While it is true that this Court should not ignore the fact that the tablets contained 10,000 mg. of methaqualone we are nonetheless satisfied that the proper approach when dealing with tablets, as opposed to powder, is the one we have set out above.

8. Mr. Macrae also urged us to hold that the trial judge was wrong when he said:

"The fact that he is a first offender and has got a clear record does not make any difference ….."

Mr. Macrae suggested that the fact that this was a first offender, a man of 48 years who lived a blameless life up until then, should have been taken into account by the trial judge. We, having considered that matter carefully, are satisfied that the trial judge was right when dealing with an offence of this kind to disregard the applicant's clear recored.

9.The application for leave will be allowed. The hearing will be treated as the hearing of the appeal and the sentence will be varied from 11 years to 9 years.

[1]  (1987) H.K.L.R. 221