CHAN SHU TONG v. R.

IN THE COURT OF APPEAL

1996, No. 119
(Criminal)

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J U D G M E N T

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Ching, J.A. (giving the judgment of the Court):

1. The Applicant was convicted on one count of trafficking in dangerous drugs. Those drugs were 792.11 kilogrammes of herbal cannabis. He was convicted on his own plea and was sentenced to a term of imprisonment of 18 years. He now seeks leave to appeal against that sentence.

2. Officers of the Narcotics Bureau were keeping watch on a flat on the 19th floor of a building in North Point. At about five minutes past three in the morning of 30th April, 1995, they saw the Applicant enter the premises. About 45 minutes later he was seen climbing down a drain pipe affixed to the exterior of the building. His position became precarious and eventually the officers broke a window on the 15th floor and rescued him. Together they returned to the flat on the 19th floor. The officers were unable to open the grille and the Applicant explained that he had latched it. One of the officers used a crow bar to unlatch it and thereafter the officers were able to gain entry with keys supplied by the Applicant. The drugs were found in the flat and there was apparatus which suggested that both manufacture and packaging took place there. Palmprints, a fingerprint and a thumbprint of the Applicant were found on various objects. Subsequently, traces of a derivative of cannabinol were found on the Applicant. The Applicant admitted that he had rented the flat under an assumed name and using a false identity card for the purposes of storing the cannabis on the instructions of his 'boss'. The Applicant's palmprint was found on the tenancy agreement provided by the landlord.

3. The Applicant admitted his part in the renting of the flat and the storing of the cannabis. He is said to have given full and frank co-operation to the police. At the earliest stage and when he was first brought before the Magistrate he indicated that he would plead guilty to the charge of trafficking. He made good that indication when he came before the Judge. He pleaded not guilty to a charge of manufacturing and that charge was ordered to be left on the file, not to be proceeded with without the leave of the Court.

4. Broadly, four matters were put forward on his behalf in mitigation. First, the Applicant had admitted his guilt and had indicated his intention to plead guilty at the earliest opportunity. This cannot be denied. He was entitled to the usual deduction of one third and this the Judge gave him even though on the available evidence it is difficult to see how he could realistically have expected to contest the charge of trafficking. Secondly, he was the storekeeper and would not have benefited from the trafficking to the extent of his employer. This also was accepted by the Judge but, quite rightly, he proceeded to sentence on the basis that the role of a storekeeper in a trafficking operation is a significant one. Thirdly, the drugs were herbal cannabis and were far less potent than cannabis oil or cannabis resin. This too was accepted by the Judge but it remains that herbal cannabis is a dangerous drug. Finally, it was argued that it would be wrong to take sentences in previous cases or guideline decisions and then to apply a mathematical formula for the amount involved. This proposition is clearly right and was accepted by the Judge. The Judge took a starting point of 30 years and then discounted it to come to the figure of 18. He did not reveal his calculations but it is obvious that he gave the usual one third discount for the early plea of guilty and then gave a further discount of two years for the Applicant's age (31) and for the role he played in the trafficking enterprise. We may remark that the Applicant was fortunate in having his age taken into account.

5. Counsel for the Appellant very helpfully took us to such authorities as there were to show that the starting point adopted by the Judge was too high and that the sentence was manifestly excessive. He began, by way of comparison, with two relating to salts of esters of morphine. The first was Ng Muk Kam (unreported, Cr.App. 685 of 1993) where the amounts involved were 339,525.75 grammes of a mixture containing 306,190.63 grammes of salts of esters of morphine. The Appellant had played an active part in the trafficking but there was no evidence that he was either the mastermind or the financier. After trial he was given a sentence of life imprisonment. This Court held that that was inappropriate but was satisfied that the offence called for a very substantial sentence and imposed one of 35 years. The next was R. v. Ho Chi Ming [1995]2 H.K.C.L.R. 29 in which the amounts involved were 1.39 kilogrammes of a mixture containing 1.213 kilogrammes of salts of esters of morphine. The Applicant was a courier for reward. He pleaded guilty. The Judge used a starting point of 25 years and reduced the sentence to one of 17 years. This Court refused to interfere.

6. There were four decisions dealing with cannabis. In Chan Chi Man [1987]1 H.K.L.R. 221 the drug involved was Methaqualone but the Court of Appeal took the opportunity to speak as to tariffs for other drugs. It held that the Court could take into account that herbal cannabis has a less damaging effect and cannabis oil a more damaging effect than cannabis resin. For the latter the sentence for offences relating to over 9,000 grammes was four years and upwards. In Nguyen Manh Hung (unreported, Cr.App. 314 of 1992) the Applicant pleaded guilty to trafficking in 40,318.7 grammes of herbal cannabis. The Judge held that the offence of trafficking in that amount should attract a sentence of at least nine years. However, having regard to the fact that the Applicant had not intended to dispose of the drug in Hong Kong, the fact that herbal cannabis is less potent and therefore less deleterious to human health than cannabis resin and the confession and plea of guilty at the first opportunity he imposed a sentence of five years. This Court refused to interfere. In So Chin-chiu [1994]1 H.K.C.L.R. 106 the amount of herbal cannabis involved was 93.26 kilogrammes. On a plea of guilty the Judge took a starting point of four years and reduced it to three for the plea of guilty and for the reason that it was herbal cannabis and not cannabis resin. This Court held that the starting point should have been eight years and in the circumstances on review increased the sentence to one of six years. Finally, in Chong Chak On [1996]1 H.K.C. 152 the amount involved was 388,674 kilogrammes of herbal cannabis. After trial the sentence imposed was one of 20 years. This Court refused to interfere.

7. We are grateful for the assistance given to us by counsel on both sides. We accept, of course, that herbal cannabis is not as damaging as salts of esters of morphine, cannabis oil and cannabis resin. It remains, however, as pointed out by Mr Greville Cross, Q.C., that the statutory limit is life imprisonment, that the sentencing Judge is to have regard to the deterrence of serious crime and that the larger the amount the higher the sentence should be. There can be no doubt but that trafficking in dangerous drugs is a very serious crime whatever the drug may be. It would appear that the largest previous seizure was that in Chong Chak On (supra) namely 388,674 kilogrammes. The amount in the present case is more than twice that. No one would suggest that the penalty here should be twice the one imposed in that case. Nevertheless, the amount is truly huge and calls for a commensurate sentence. We are unable to say that the starting point of 30 years was wrong or that the sentence of 18 years was manifestly excessive. In these circumstances the application must be dismissed.