THE QUEEN v. NG SHUN YING AND ANOTEHR

------------------------

-----------------

JUDGMENT

-----------------

Kempster, JA :

1. On 25 May last, having granted both applicants leave to appeal against convictions for trafficking in dangerous drugs, we dismissed the substantive appeals. Now we have heard their applications for leave to appeal against the respective sentences of nine years imprisonment passed upon them. Reference should be made to our earlier judgment for the relevant facts. What may be described as "Further Perfected Grounds" were filed on 22 May.

2. In considering the appropriate sentences O'Connor J adopted the hitherto acceptable approach that a conviction for "trafficking" was more serious than a conviction for "possession for the purpose of trafficking". In our judgment in R v Lau Tak Ming and Anor Cr App No 230 of 1989 (unreported), however, we suggested that no real distinction falls to be made between such offences; both of which allow for maximum sentences of life imprisonment.

3. The learned judge also went on to analyse the extent of the business which had been carried on during the three day period specified in the Particulars of Offence and to observe that "this retail business in drugs ... was being openly carried on, almost like a newspaper man in the street ... ". He also commented unfavourably on the presence in the applicants' flat, where the business was being conducted, of their children. In conclusion he referred to R v Chow Kwok Ping Cr App No 528 of 1986, where the applicant had been convicted of trafficking in 43.18 grammes of a mixture containing 4.37 grammes of salts of esters of morphine and sentenced to six years imprisonment; described by this court as "possibly on the high side".

4. As was stated in the judgment in R v Lau Tak Ming the proper sentencing process involves reference to the practice and guidelines, if any, prevailing at the time when an offence is committed. It also involves due regard to the parameters of the charge as O'Connor J properly directed himself albeit there was evidence, including the large quantity of used syringes found in the vicinity, upon which the female applicant at least might have been charged with trafficking over a longer period than three days.

5. During the period charged the amount of dangerous drugs sold in solution and in syringes amounted to some 50.7 grammes of a mixture containing 8.5 grammes of salts of esters of morphine. The monies received amounted to some $12,000. Insofar as R v Chan Chi wing (1979) HKLR 491 is applicable this mixture comes within the "small" category the sentence for which would range between three and five years imprisonment. Having regard to the flagrancy of the operation being conducted by the applicants, their bad records and the assistance given in injecting the addicts a sentencing judge might well have looked to the upper end of the bracket and, indeed, exceeded it by reason of the sentence passed in R v Chow Kwok Ping. Nonetheless I cannot think that it would have peen or was proper to pass a sentence of nine years imprisonment. Such a sentence was manifestly excessive. Further, I am unable totally to ignore either the deprivation which will be suffered by the applicants' four children in losing the care of both parents over a protracted period, whatever the quality of their parenthood, or the exceptional burden of remorse and anxiety which the applicants will themselves have to bear in consequence.

6. Accepting as I do the judge's conclusion that no distinction falls to be drawn between two applicants who were pursuing a common enterprise from premises in their joint occupation I am satisfied that the circumstances of this case call for sentences of six years imprisonment. Prima facie the application of the guidelines suggested in R v Lau Tak Ming, had they been appropriate, would have resulted in more lenient sentences but the unusual features of this case could not have peen ignored.

7. I would allow the applications and, treating this as the hearing of the appeals, set aside the sentences of nine years and substitute sentences of six years imprisonment; thus allowing the appeals also.

Silke, V-P:

8. I agree with the order proposed by my Lord Kempster and his reasoning therefor.

9. I too would allow the appeals and substitute sentences of six years imprisonment for those imposed by the trial judge.

Macdougall JA :

10. I agree with my brethren that the sentences passed by the judge on both applicants are such as to require the interference of this court.

11. However, I wish to disassociate myself from any suggestion that the burden of remorse or anxiety, it is said the applicants will have to bear on account of their children, is a mitigating factor to be taken into account in a case such as this.

12. The applicants were well aware of what they were doing. They not only engaged in a course of criminality from their home in the presence of their young children, but by leaving drugs within their reach, exposed them to a very obvious and serious risk.

13. Moreover, only recently in The Queen v Lau Tak-shing (Criminal Appeal 230 or 1989) this court expressed the view that factors which could lead to a discount in sentence in other types of offence would generally have little weight where drug offences of this kind are committed. The court also made reference to the notorious fact that, in order to elicit the sympathy of the courts, drug dealers make use of the blind, the maimed, the halt, the young and the aged in the carrying out of their criminal activities.

14. If an unsympathetic ear is to be turned to such persons I am unable to accept that any remorse or anxiety which it is supposed these two unworthy applicants might suffer should weigh in their favour and constitute a mitigating factor for the purpose of sentence.

15. Notwithstanding the view that I have just expressed, I accept that, although the evidence disclosed a much longer period of trafficking than the three days specified in the indictment, the trial judge was obliged to base the sentences on the period charged. Had the prosecution seen fit to formulate an indictment in which the period of trafficking alleged was consistent with the evidence in its possession, the sentences which the judge imposed may well have been justified.

16. However, the indictment being framed as it was, I agree that these applications for leave to appeal against sentence must be granted and that the sentences imposed should be quashed and substituted by sentences of six years imprisonment.