THE QUEEN v. NG YUK TONG

IN THE COURT OF APPEAL

1986, No.486
(Criminal)

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Dates of Hearing : 31^st March 1987

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J U D G M E N T

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1. On the 13th' March, we refused the application for leave to appeal against conviction and adjourned the question of the application in respect of sentence so that we could be provided with a more update medical report than the one that was before the trial judge.

2. The trial judge had a report dated the 17th September 1986 which related that the Applicant had been admitted into the Custodial Ward of Surgical A Unit on the 27th of August because of epigastric pain. There was a risk, it concluded, of a possible actue exacerbation of the disease.

3. We have now two further reports. In the first dated the 17th of March, it is clear that he has been discharged from the Unit. He has been treated by the Surgical Specialist, he has had follow-up treatment and the conclusion is that, apart from his hypertension which is well controlled by prescribed treatment, his general physical health condition is thought to be satisfactory.

4. The second, dated the 17^th of March, says that 27th of March, says that "ultra-sound scanning of the abdomen was done twice and showed no abnormality of the liver and biliary system". It concluded with the somewhat criptic statement that “no final diagnosis can be concluded at this stage".

5. The sentence of two years passed by the trial judge was within the range of the opium sentences in Lau Yiu Nam(1). It suggested as a guideline for a quantity of over 2,000 grammes of two to three years' imprisonment.

6. In passing sentence, the judge said that he did not consider the weak health or the age of the defendant to be relevant factors. We tend to agree with him in relation to the weak health, for this may well be a matter for the Executive rather than for the Court, but we think here that the age of 74, when the man has been an opium addict for some fifty years, is something which should have been borne in mind. It provides a mitigating factor.

7. On the face of it, the sentence of two years cannot be said to be excessive. But circumstances particular to this case, the items found, the quantity - though we do not accept Mr. Cheng Huan's suggestion that a substantial amount of that quantity would have been for the Applicant's own consumption -, the age of the Applicant, his addiction and that he has been caring for his mentally handicapped son, we think the sentence to have been too high and too high in the sense that leads us to interfere. We shall grant leave, the hearing of the application as the hearing of the appeal and reduce the sentence to one year's imprisonment.