THE QUEEN v. LEUNG WING FAI

IN THE COURT OF APPEAL

1987, No. 15
Application for Review

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JUDGMENT

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Headnote: Review of. Sentence: pro rata adjustment of tariff wrong: suspended sentence wrong for possession for the purposes of trafficking.

Silke, V.-P.:

1. Leung Wing Fai was convicted after trial in a Magistrate Court on the 5th May of this year fur the offence of possession of dangerous drugs for the purpose of unlawful trafficking. The Particulars of Charge referred to three plastic bags containing a mixture of salts of esters of morphine. The total weight of that mixture was 7.26 grammes and the weight of the salts of esters of morphine was 0.67 grammes.

2. The trial magistrate imposed a sentence of 9 months' imprisonment which he then suspended for a period of 2 years.

3. The Attorney General, under the provisions of section 81A of the Criminal Procedure Ordinance, asks this Court to Review that sentence on the basis that it is both manifestly inadequate - in that 9 months is considerably below the tariff as set out in Chan Chi Ming[1] - and wrong in principle - in that it was pro rata to that tariff and suspended.

4. In passing the sentence he did, the magistrate accepted that the offence was serious and deserved a custodial sentence. With that observation we are in entire agreement.

5. He then proceeded to apportion the tariff in Chan Chi Ming¹, relative to the mixture itself, and arrived at the figure of 9 months. With respect to him, that was a wrong approach. The tariff in Chan Chi Ming¹ for' "very small", that is up to 30 grammes of a mixture ranges from 2 to 3 years. We accept that tariffs are not as immutabe the laws of the Meads and Persians. They are subject to variation but there must be some very good reason which would permit of a variation before alterations are made in them. Here, there does not seem to be anything of significance relative to the Respondent. He had a record with four previous offences of simple possession of drugs - not the offence for which he is charged here. He has had no record of any offence since 1977 but the fact of-his previous record does not permit of any discount.

6. As was said in Chan Chi Ming¹:

"In offences of this nature, the main consideration must be the punishment of the offender himself and the deterrence of others who might be minded to take part in this lucrative and wicked trade."

7. Mr. Lim, who appears for the Respondent today, informs us that he lost his job prior to the offence. That was not a factor brought to the attention of the trial magistrate, quite the contrary. He lost his job as a public light bus driver because he was unable to pay off fixed penalty tickets and he started work in a snooker saloon. Since his conviction he has left the snooker saloon, he has taken methadone treatment and he claims to have now terminated his addiction. The defence raised in the Court below was that he was an addict and that the drugs were for his own consumption. That defence was not accepted. He is married with three sons aged 13, 8 and 3.

8. As we have said it was a wrong approach for the Magistrate to apportion, in the fashion he did, the tariff in Chan Chi Ming¹. The sentence here should have been at least 2 years, the lower end of the tariff being appropriate. 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.

9. Taking into consideration the period he has spent in freedom after sentence was passed, that he has through the use of methadone treatment rid himself of addiction and bearing in mind that this is a Review in which a discount is granted on the sentence the Court thinks correct, we think a sentence of 14 months' imprisonment to be proper.

10. We, therefore, allow the application, set aside the sentence of 9 months suspended for 24 months and substitute there for one of 14 months' imprisonment.