THE QUEEN v. CHEUNG LAN-HEUNG

IN THE COURT OF APPEAL

Criminal Appeal

No. 526 of 1984

BETWEEN

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JUDGMENT

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McMullin, V.-P.

1. This is an application for leave to appeal against sentences totalling three years' imprisonment imposed upon an elderly woman following her plea of guilty to two charges of possession of drugs for the purpose of trafficking.

2. It is one of those very sad cases in which the court is confronted with an elderly person in poor health who clearly has been made use of by persons who are in the business of trafficking in dangerous drugs.

3. The applicant was arrested on the 10th July in Portland Street under circumstances which the summary of facts does not clearly disclose. Upon search she was found to be in possession of a number of keys. These were used to gain entry to the first premises searched by the police, which were nearby in Portland Street.

4. In that apartment the police discovered a quantity of dangerous drugs. The major quantity-that laid in the first charge - came to 208 grammes of a mixture containing 41 grammes of heroin. There were some polythene bags and other equipment found there as well. The keys which had been found in the possession of the applicant were also used by the police party in the search of the second premises, an apartment in Nathan Road into which they had to force an entry within were found the second and third defendants who were subsequently charged together with the applicant. No evidence, we understand, was offered by the Crown in their case. The search of these premises disclosed the smaller quantity of drugs laid in the second charge.

5. The District Judge had before him certain medical reports and the probation report. The applicant was on bail between her arrest on the l0th.July.and her trial on 22nd October. She was sentenced on the 6th November. In passing sentence the judge said:

"It is well known to Judges and Magistrates in Hong Kong that the bigger drug traffickers are able to recruit the very young and the very old (like the first defendant) to assist in carrying out their drug trafficking activities ............"

He allowed a period of one year for the plea of guilty and a further year on compassionate grounds in respect of her family history and general background circumstances. He imposed sentences totalling three years although, as he said, within the tariff guidelines under which the courts presently operate a sentence of five years would have been appropriate regard being had to the quantity of drugs discovered.

6. Mr. Poll before us does not quarrel with the allowance made in respect of the plea of guilty but he suggests that the judge did not pay sufficient attention to the personal circumstances of this old lady and did not therefore make a sufficient allowance in regard to them in arriving at his sentence.

7. There is no doubt that the probation report discloses family circumstances of considerable misfortune. The applicant emerges as a woman who throughout her life has struggled against very adverse conditions. She is now, as the judge accepted, about 68 years of age. She has been three times married, firstly in China where to her first husband, she bore five children. When she parted from him (under circumstances not disclosed) she came to Hong Kong and married again. The second husband died some time after the birth of the third child of that marriage leaving her without support. She then took up with a third man, with whom she was living at the time of these events. By him she has had one further child, a boy who is now 16 years of age.

8. For some ten years she had been supporting herself and such of the children as still remained in the care of herself and her busband by hawking small items of jewellery. It would appear that it was in the course of that period that her health deteriorated and for some time she was inconsiderable pain due to a number of disorders. These have been described, in a number of medical reports which we have before us as, principally, an umbilical hernia, a non-functioning gall bladder and a duodenal ulcer.

9. Some time during this period, she came in contact with the drug pusher who introduced her to the drug by offering it to her for her own consumption. She said that she did not know what it was when she took it but it did relieve her pain. Although we cannot hold it in her favour that she did not know what she was dealing with when she was discovered to be in possession of the drugs laid in the charges, that matter being disposed of by her plea of guilty, it may very well be that she first took up this co-operation with the pusher by reason of the fact that she was given by him a substance which she used without close inquiry because it did effectively relieve her pain.

10. She had been advised to have surgery by Dr. Yim but she was reluctant at first and was taking medicine prescribed by him which to some extent alleviated her condition. Eventually her pain returned and she last saw Dr. Yim on the 2nd October, 1984 while she was on bail in connection with the present offence. She had, at that time, lost 12 lb. in weight and because her pain had returned she had then consented to the surgery. This has never taken place and she did not return to him again, the reason presumably being that thereafter she was convicted of the present offence and went to prison.

11. She has been in the care of doctors in the prison and we understand that after she entered prison an appointment was made for her to attend Queen Mary Hospital for a doctor to consider her condition and to advise on surgery. We do not know what the result of that visit has been.

12. We would not wish to say anything to derogate from the force of the judge's observations in passing sentence. The experience of the courts has indeed shown that people who engage in this most unscrupulous traffic will resort to using the very young or the very old or infirm persons in order to further their trade in the hope that sympathy, excited by their condition, will mean that when convicted they might not receive heavy sentences. The courts have for years leaned against this subtle form of influence but every case must be considered individually. When originally the court in MO Kwong-sang⁽¹⁾ laid down its guidelines in respect of the correct range of sentence to be imposed for offence of this kind. The Chief Justice went on to say:

"Nothing which we say should be construed as inhibiting a court from adjusting those sentences to accord with the record, age or other personal circumstances of the refused or from taking in account of the particular facts of the case before it."

13. We accept, in the present case, that, although this old lady was undoubtedly being used for the purpose of storing dangerous drugs and was therefore trafficking within the proper sense of that term, it is very unlikely, as Mr. Poll has said, that she was making very much in the way of money from it, if anything. Far more likely is it that she was receiving heroin which alleviated her own pain in return for her services as a holder of the drugs and possibly for performing some other activity in relation to their distribution.

14. The background circumstances of the applicant prompt us in this case to show what may be regarded as a considerable degree of clemency. We grant the application, treating it as the hearing of the appeal, set aside the sentences proposed by the court below, substituting therefor sentences of nine months' imprisonment on each count to run concurrently.

15. We would like to add that we trust that the prison authorities will take such steps as are necessary to see that the condition of the applicant receives the proper attention whether that be surgical or continued medical treatment.

(1)    (1981) H.K.L.R. 610