R. v. LI KAM CHAN

IN THE COURT OF APPEAL

1993, No. 123
(Criminal)

Headnote

Criminal Appeal - Sentence - "Simple" possession of dangerous drugs - 5.65 grammes narcotic contents - 12 months' imprisonment too high - 9 months' substituted - The Queen v. Lai Sik-keung Cr. App. 173/89 (10 Aug. 89, unreported) followed.

IN THE COURT OF APPEAL

1993, No. 123
(Criminal)

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(Re: conviction): 7 October 1993

(Re: Sentence): 12 October 1993

 

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J U D G M E N T

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Litton, J.A. (giving the judgment of the court):

1. This is an application for leave to appeal against conviction on one charge of possession of a dangerous drug.

2. The conviction was on 4th March 1993 in the District Court. The applicant was originally before the court on two charges of possession for the purpose of unlawful trafficking. He was acquitted on the second charge and on the first charge, the judge found him not guilty of possession for the purpose of unlawful trafficking but only of simple possession.

3. The prosecution case depended on the testimony of two police officers who stopped and searched the applicant on 6th May 1992 at Pat Heung, Yuen Long, and upon being searched he took out from his waistband something wrapped in transparent polythene which was found to contain the dangerous drug, the subject of the first charge, namely 11.99 grammes of a mixture containing 5.65 grammes of salts of esters of morphine.

4. The applicant gave evidence and disputed the police evidence and said that he was simply grabbed by four men in plain clothes and was then taken to Pak Heung Police Station. He denied the evidence that the packet of drug was found upon him.

5. The judge found his evidence inherently unbelievable, accepted the testimony of the two police officers and rejected the evidence of the applicant.

6. There is no basis on which the conviction can be disturbed and no grounds of appeal have been advanced which trouble us. The application should be dismissed.

Sentence

7. The quantity in issue is 11.99 grammes of a mixture containing 5.65 grammes of salts of esters of morphine. The applicant has a fairly long record of drug offences and in November 1992 he had been sentenced to a total of 16 months' imprisonment for possession of dangerous drugs on four charges, attracting consecutive sentences of 4 months each.

8. When this matter first came before us we were troubled by the sentence of one years' imprisonment imposed by the District Judge and sought assistance from counsel for the Crown Mr. Pethes. At the adjourned hearing this morning he has helpfully referred us to two cases, Application for Review No. 21 of 1998 The Attorney General v. Chan Tak King, 6th June 1989 (unreported) and The Queen v. Lai Sik Keung, Criminal Appeal No.173 of 1989, 10th August 1989 (unreported), from which it is clear that the normal range of sentences for the crime of simple possession of heroin where the quantity involved is not large would be between 6 months to 9 months' imprisonment.

9. The facts of Lai Sik Keung are very similar to those of the present case. There the narcotic content of the mixture of dangerous drugs was 3.66 grammes of heroin. The applicant there likewise had a history of drug offences and had likewise attracted sentences of imprisonment a few months before the matter at hand. There, taking into account the totality principle, the Court of Appeal set aside the sentence of 18 months and imposed a sentence of 9 months consecutive to the earlier sentences.

10. We can find nothing in the Reasons for Sentence of the District Judge to justify varying from the normal tariff for cases of this kind. He had quite rightly imposed the sentence for this offence to be served consecutively to the sentences imposed by the magistrate on 2nd November 1992 but, in our view, he erred in principle in imposing a sentence of one years imprisonment.

11. In our judgment, the proper sentence for this offence would have been one of 9 months' imprisonment to be served consecutively to the sentences imposed on 2nd November 1992. This application is therefore allowed and we treat this as the hearing of the appeal, set aside the sentence of one years' imprisonment and substitute one of 9 months.