THE QUEEN v. YEUNG LAI YING

Mag. App. No. 290 of 1987

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

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JUDGMENT

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1. The Appellant was found guilty after trial in the Magistrate's Court on two charges: one of trafficking in the dangerous drug contrary to Section 4(1)(a) and the other of possession of a dangerous drug for the purpose of unlawful trafficking contrary to Section 7 of the Dangerous Drugs Ordinance (“the Ordinance”). The trafficking charge related to 4 tablets containing 0.9 grammes of methaqualone whilst the possession charge related to 20 tablets containing 5.3 grammes of the same drug. The offences were committed on the 25th November 1936 and she was convicted on the 27th February 1987. She was sentenced to imprisonment for two years in respect of the trafficking conviction and to imprisonment for 18 months in respect of the possession conviction, both sentences to be served concurrently. She now appeals against both sentences. At the time of sentence she was already being detained in the Drug Addiction Treatment Centre, having been sent there on the 21st of January 1987 in respect of a conviction for possession of heroin committed on the 21st of October 1986.

2. The Respondent concedes that the sentence in respect of the possession conviction is wrong in principle bearing in mind the guidelines provided by the Court of Appeal in A-G v Chan Chi-man[1].

3. In respect of the other sentence there is this difficulty: the record does not disclose what act the Appellant did which constituted "trafficking" within the meaning of the Ordinance. Under the Ordinance "trafficking" includes

"importing, exporting, procuring, supplying or otherwise dealing in or with a dangerous drug”.

4. The learned Magistrate in his findings does not say what the Appellant did and a perusal of the evidence is not possible because it has not been transcribed, this being an appeal against sentence only.

5. If the Appellant supplied a friend with 4 tablets so that the friend could reach and maintain “a high” over “a lost weekend” she would have trafficked within the meaning of the Ordinance whether or not she received any recompense from her friend. If she did receive money it was a “dealing in” form of supply; if she received nothing in return it was a “dealing with” form. Clearly, a supply during the course of a commercial transaction is higher on the scale of criminality than a supply motivated by misguided kindness.

6. Since the record does not show that this was a commercial transaction the sentence is, in my view, manifestly excessive.

7. I therefore allow the appeal, quash the sentences and substitute concurrent sentences of such length as to enable the immediate release of the Appellant.