THE QUEEN v. PANG CHEUNG KIM

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J U D G M E N T

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Fuad, J.A. (delivering the judgment of the Court):

1. This is an application by the Attorney General, pursuant to leave and under s.81A of the Criminal Procedure Ordinance, Cap. 221, for the review of a sentence imposed by Mr. P.C.T. Lee in the South Kowloon Magistrates Court upon Pang Cheung Kim.

2. The Respondent, who is aged about 33, was convicted after a trial of possessing dangerous drugs for the purpose of unlawful trafficking contrary to s.7 (1) of the Dangerous Drugs Ordinance, Cap. 134. The quantity of dangerous drugs involved was 6.12 grammes of a mixture containing 0.73 of a gramme of salts of esters of morphine.

3. On 5th May 1987 the Respondent was sentenced to nine months' imprisonment suspended for two years.

4. I think it is desirable to review the reasons why this application has not been dealt with earlier by this Court. The magistrate declined to review his decision under s.104 of the Magistrates Ordinance, Cap. 227, on 2nd June 1987. The Attorney General filed his application for leave to apply for a review of the sentence on 23rd June. Leave was granted by the Acting Chief Justice on 24th June and the application proper was filed on 29th June.

5. When the application came on for hearing on 18th August the Respondent had not been served since he had moved from his last known address. He was eventually served and appeared before this Court on 20th January 1988 when he was granted an adjournment at his request so he could apply for legal aid, which was granted on 26th January.

6. The facts were that the Respondent was stopped in the street by police officers of the Special Duty Squad at about 6:00 a.m. on 6th January 1987 and found with the drugs on his person.

7. The following were the learned magistrate's Reasons for Sentence:

"(1)    Offence serious and deserved severe punishment.

(2)    Drugs found on the Defendant weighed 6.12 grammes; apportioned the tariff laid down in Chan Chi Ming' a 9 months imprisonment would he anappropriate sentence.

(3)    Impressed by the Defendant's criminal record : only one conviction of Possession of Equipment fit and intended for smoking dangerous drug in 1979.

(4)    In the circumstances I considered a suspended sentence would be a sufficient deterrent.

(5)    To enhance the deterrent effect I extended the period to one of 24 months."

8. In support of the Attorney General's application, Mr. Cross points out that the Respondent did not plead guilty; he did not have a clear record (he had been convicted in July 1979 of the possession of equipment fit and intended for smoking dangerous drugs); and there were no special circumstances to warrant the magistrate departing from the guidelines set out in Chan Chi Ming v. R. [1979] H.K.L.R. 491.

9. As Chan Chi Ming shows, the sentence which should normally be imposed would be in the range of two to three years' imprisonment. And we accept Mr. Cross's submission that since the magistrate had been told by the Respondent that the drugs were for his own consumption, and having regard to the relatively small quantity of drugs, he should have adopted the approach suggested by the Chief Justice in Chan Chi Ming at page 494, where he said:

"It is proper that, where very small quantities are involved, allowance should be made for the possibility that the accused may be an addict himself, selling on a small scale either to gain sufficient money to justify his own needs, or to be supplied with drugs for his own consumption in lieu of payment. In such circuwstances, the allowance which can be made for his own addiction, with the suffering which it brings, is reflected in the range of two to two and a half years imprisonment."

10. A 21 year old man who had been arrested with the Respondent appeared before the same magistrate on 5th May 1987, on a separate charge but in a joint trial. He was convicted of possessing 7.26 grammes of a mixture containing 0.67 of a gramme of esters of morphine and given precisely the same sentence. An application by the Attorney General to review that sentence succeeded on 18th August and in its place a sentence of 14 months' imprisonment was imposed by the Court of Appeal (R. v. Leung Wing Fai, Application for Review No. 15 of 1987).

11. Silke, V.-P., giving the judgment of the Court, accepted the Crown's contention, as we do, that the magistrate had adopted the wrong approach in apportioning the tariff relative to the mixture itself. As was emphasised in Chan Chi Ming at page 492:

"It is the quantity of the mixture which should be looked at, rather than its content. This is because it is the mixture which is sold to the customer."

12. In Leung Wing Fai, Silke, V.-P. said that while the tariffs were not immutable and were subject to variation, there must be some very good reason which would permit a departure. We respectfully agree. Silke, V.-P. Added, with good reason we think, that:

"In offences of this serious nature, for it is a wicked thing to provide drugs to others, suspended sentences are, generally, wrong in principle. Had a sentence of two years been imposed, then no suspension could lawfully have been placed upon it."

13. Mr. Alexander Wong who appeared for the Respondent on this application has urged upon us on the proposition that although the sentence imposed by the magistrate was a departure from the tariff, it was not so lenient a sentence that it could be regarded as manifestly inadequate within the meaning of the relevant section. He suggested that some credit should be given to the Respondent for the fact that although he did not admit the offence charged he did admit possession of the drugs so that at least some witnesses and court time was saved. He also told us that the Respondent had some stomach and gall trouble for which he is still receiving out-patient treatment.

14. It is no light matter to impose a sentence of imprisonment upon someone who has been subject to a suspended sentence but in all the circumstances we think that the application must succeed. We take into account the long delay involved, and the fact that the Respondent only now has to adjust to an immediate term of imprisonment, in assessing what length that sentence should be. We also have regard to the sentence imposed by the Court presided over by Silke, V.-P.. In that case the Respondent had in effect a larger quantity of drugs in his possession and had more previous convictions for drugs related offences. On the other hand, the Respondent in that case was aged about 21 and the Respondent in this case is considerably older.

15. Having regard to all these matters, we think that the appropriate sentence in this case is one of 12 months imprisonment and, therefore, we set aside the sentence imposed by the magistrate and impose that sentence. We think that the Respondent must regard himself fortunate to have received a sentence so much below the tariff laid down in Chan Chi Ming.