TAM KIN CHEONG v. R.

IN THE COURT OF APPEAL

1992, No 35
(Criminal)

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J U D G M E N T

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

1. The applicant, Tam Kin-cheong, was convicted by Deputy Judge Sharwood and a jury on 13th January 1992 on two counts of possession of dangerous drugs for the purpose of unlawful trafficking and on the following day sentenced to 8 years' imprisonment on each count, to run concurrently. He now seeks leave to appeal against both conviction and sentence.

2. The facts are quite simple. Two police officers observed the applicant wandering around the junction of Fa Yuen Street and Playing Field Road in Kowloon. He was carrying a mobile telephone and appeared nervous. They searched him and found two plastic bags in a pocket of his shorts. The contents subsequently turned out in the case of the first count to be 33.17 grammes of salts of esters of morphine, and the other 49.01 grammes of salts of esters of morphine.

3. The applicant in his home-made written grounds of appeal complains that the judge was prejudiced and that he unfairly directed the jury; that he did not give unequivocal definitions of the offences of possession of dangerous drugs for the purpose of trafficking as opposed to simple possession; that he made undue mention of the portable phone and a Rolex watch found in his possession; that he referred to his previous convictions; and that he did not examine his exhibits during the hearing but yet queried them in his summing-up to the jury.

4. The summing-up in fact reveals that there is nothing in the applicant's complaints, and that there is no merit in his grounds of appeal against conviction. Accordingly leave to appeal against both convictions is refused.

5. As to the applicant's application for leave to appeal against sentence, his sole ground is that the judge used the prevailing guidelines in relation to the quantity of morphine in possession as the basis of sentencing him, and stated that possession of 50 to 200 grammes attracted imprisonment for 8 to 12 years. He adds, however, that the two counts involved 33.17 grammes and 49.01 grammes respectively neither of which was in excess of 50 grammes.

6. Clearly the basis of that ground is the new tariff in R v Lau Tak-ming [1992] 2 HKLR 370, which is stated in the following way:

"(i) up to 10 grammes of narcotics: 2 to 5 years imprisonment;

(ii) between 10 grammes and 50 grammes: 5 to 8 years;

(iii) between 50 grammes and 200 grammes: 8 to 12 years;

(iv) ..."

Equally clearly the applicant is mistaken in assuming that the sentence on the second count can be justified only on the basis of category (iii). On the contrary the amount of 49.01 grammes of salts of esters of morphine is clearly right at the top end of category (ii), amply justifying the sentence of 8 years. Therefore there is no merit in the applicant's complaint against the sentence of 8 years on that count.

7. However, by the same token, the amount of 33.17 grammes does not of itself warrant a sentence of 8 years imprisonment nor is there any other apparent justification. We think that the appropriate sentence in respect of that quantity would be one of imprisonment for 6 years to conform with category (ii).

8. Accordingly, we grant leave to appeal against sentence, allow the appeal in respect of the sentence on the first count and substitute for that sentence a sentence of imprisonment for 6 years, to be concurrent with the sentence on the second count.