ATTORNEY GENERAL v. WONG MA TAI

IN THE COURT OF APPEAL

      Application for Review
1991, No. 14

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R E A S O N S

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Nazareth, J.A. (giving the Judgment of the Court):

1. The Attorney General with leave applied for revision of the sentences passed on the Respondent by Deputy Judge C.Y. Wong on 27th September 1991. Having heard Mr. Coghlan for the Appellant and Mr. Kevin Egan for the Respondent, we allowed the application and substituted immediate custodial sentences of two years on the first charge, two years on the second charge, with eighteen months to be served concurrently with the sentence on the first charge, and six months consecutive, and three months on the third charge. We now give our reasons.

2. The Defendant WONG Ma-tai pleaded guilty before Deputy Judge Wong and was convicted on two charges, first of manufacturing dangerous drugs contrary to s. 6(1) (a) and (2) of the Dangerous drugs Ordinance, Cap. 134; and also on the third charge of possession of an instrument fit and intended for the smoking of a dangerous drug contrary to s. 36 of Cap. 134. In addition, after trial he was convicted by Deputy Judge Wong of the second charge of possession of a dangerous drug for the purpose of unlawful trafficking contrary to s. 7 of Cap. 134. He was sentenced on the same day, the 27th September 1991, to imprisonment for eighteen months on the first charge, to twelve months on the second charge and to three months on the third charge; each of which sentences was suspended for three years.

3. The facts are that at about l a.m. on 11th October 1990, the police raided premises in Tai Po. Immediately before they entered the Respondent was seen stirring a basin on an LPG cooker. In the premises there was found 827.3 grammes of opium prepared or being prepared, which became the subject of the first count, 1763.3 grammes of raw opium which became the subject of the second charge and an opium pipe, lamp and needle which became the subject of the third charge. The Deputy Judge, not surprisingly, having regard to so large a quantity, rejected the Respondent's claim that it was for his own consumption.

4. The Deputy Judge appears to have accepted the Respondent's evidence that he was 62 years of age and that he had been an addict for nearly 50 years. In his Reasons for Sentence he referred to the "quite substantial" amount of opium and the guidelines on possession for trafficking in Lau Yiu-nam [1986] HKLR 964 in relation to the second charge, pointing out that he was unable to find any guideline in relation to the manufacturing of opium. He then went on:

"That being so, I can only fall back upon what the Court of Appeal does and have done with cases which related to heroin when dealing with sentence relating to possession for trafficking and that of manufacturing. In those cases, it has always been the opinion of the Court of Appeal that manufacturing is the more serious of the two offences and therefore required a more severe sentence. However, with opium, the manufacturing is merely the turning of raw opium into prepared opium; which I note in passing, has not drawn any distinction with the Court of Appeal in sentencing. The process of manufacturing opium is a simple one and therefore it is in my view not to be equated with the manufacturing of heroin in the sense that a much heavier sentence is called for.

Mr. Egan has urged upon me many factors in mitigation which, with respect, I accept. However, it would be entirely wrong in principle for me to deal with the Defendant by way of a non-custodial sentence. I bear in mind the age of the Defendant, his poor health, his pleas to the 1st and 3rd Charges and of course the factors to be considered in a consideration of revising tariffs for drug offences as laid down in the case of Attorney General v. CHAN Chi-man. I take the meaning of the word there of 'revising' to include adjusting of the tariff up or down proportionately with the prevailing circumstances. I accept that the use of opium is on the decline because of other more readily available and convenient drugs on the market.

Having taken all the facts of this case, together with submissions and the contents of the Drug Addiction Treatment Centre report into account, I feel I am able to deal with the Defendant by imposing a sentence on the totality principle. I have also considered whether it is possible to be lenient and whether it would be wrong to suspend the period of imprisonment I have in mind. I accept that there is no necessity to impose any deterrent sentence be it in rem and in personam. And acting with the mercy which Mr. Egan has urged upon me, I find that the most lenient way in which I can deal with the Defendant is to impose a sentence of 18 months."

The first point taken by Mr. Coghlan, which Mr. Egan concedes, is that manufacturing dangerous drugs is an excepted offence under s. 109B of the Criminal Procedure Ordinance, Cap. 221, and that accordingly the sentence in respect of such an offence cannot be suspended having regard to the effect of s. 109G read with Item 4 of the Third Schedule to Cap. 221. That is obviously right and the Judge's order suspending the sentence in respect of the first charge therefore cannot stand.

5. Turning then to the quantum of that sentence, having regard to the tariff in LAU Yiu-nam (1986) HKLR 964, 966, possession of 827.3 grammes of opium should have attracted a sentence of about one year. However, as another division of this court held in R. v. WONG Chun-hina (1984) HKLR 247, 257, the manufacture of dangerous drugs attracts a much heavier sentence than possession of the same quality for the purpose of trafficking. Sir Denys Roberts C.J., giving the judgment of the Court, said:

"... The serious 'aspect of manufacturing is that the process of distribution and trafficking in D.D. depends upon a refining process being undertaken between the grower and the consumer.

It is therefore the act of manufacture that is the worst feature of this most serious offence, not merely the amount of drugs which is found on the premises where the process takes place ......

We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years imprisonment ......."

That was of course in relation to salts of esters of morphine, and neither that reasoning nor the severity of sentence would apply to opium in the same degree. Nevertheless manufacturing would attract a much heavier sentence than possession for the purpose of trafficking as yet another division of this Court held in Attorney General_ v. MA Sui-tai and another A.R. 1/1988 (unreported). In that case the Court concluded that since the quantity involved, about 3000 grammes, would have attracted a sentence of about 3 years' imprisonment for possession for trafficking, a sentence of 5 years would be appropriate to the offence of manufacturing before it. This was reduced by a review discount of one year to four years.

6. We do not think the reasons given by the Deputy Judge can justify so substantial a departure from the foregoing guidelines as the sentences he imposed requires. Moreover it is for this Court to vary those guidelines (R. v. LAU Tak-ming [1990] 2 HKLR 370, 381J). We think that a much heavier sentence is called for.

7. Turning to the, second charge of possession for the purpose of trafficking, the CHAN Chi-mina tariff for 1000-2000 grammes is twelve months to two years, and therefore the amount of 1763.3 grammes of opium should have attracted a sentence approaching two years. Again we do not think the reasons given by the Deputy Judge warrant his departure from the CHAN Chi-mina tariff and that an appropriate increase is required.

8. The sentence on the third charge was not questioned save by implication in the overall context of the three sentences being suspended. We considered that it was clearly right that it should be served concurrently with the first two sentences.

9. In his submission for the Respondent opposing the Attorney's application, Mr. Egan explained the nature of the Respondent's ill-health, and stressed the absence of involvement in the first two offences of any persons other than the Respondent's wife and son, pointing to the very small scale of the operations involved. He submitted that the Deputy Judge had quite deliberately departed from the guidelines, that these were not intended to be a straight jacket and that the Deputy Judge had intended to depart from them. He submitted also that the Respondent had not only himself to fund the substantial costs of his defence but was now likely to lose his life savings as proceedings were underway to have them forfeited under legislation concerned with the seizure of the proceeds of drug trafficking. If those funds do represent the proceeds of drug trafficking we would not consider their loss to be a mitigating factor. As to the Deputy Judge's view and reliance upon "the use of opium being very much on the decline", which was disputed by Mr. Coghlan, Mr. Egan produced from official sources figures of seizures over the last several years. As to those we say only that while they may arguably be said to point to a decline rather than the contrary, they do not establish the validity of the judge's view.

10. However that may be, the suspension of the sentence on the first charge of manufacturing could not stand. Likewise we do not think it right given the seriousness of the second charge of possession for the purpose of trafficking, that the sentence in respect of that charge should be suspended. As we have said,, the departure on the first two sentences from the guidelines mentioned has not been adequately explained. On the other hand there are the mitigating factors mentioned. In addition the discount the sentences now attract on being enhanced on review is compounded by the fact that, having been allowed his liberty for some five and a half months, the Respondent will now have to undergo imprisonment. Having given consideration to all the foregoing matters we concluded that immediate custodial sentences on a totality basis consecutively totalling two and a half years were called for, and would be appropriately achieved by the individual sentences substituted.