TAM Shing-li v. R.

IN THE COURT OF APPEAL

1994, No. 10
(Criminal)

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J U D G M E N T

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

1. This is an application for leave to appeal against a sentence of two years' imprisonment passed in the District Court for simple possession of dangerous drugs.

2. The amount involved was substantial for a charge of simple possession. It was 33 grammes of a mixture containing 16.77 grammes of salts of esters of morphine. The applicant pleaded guilty and the trial judge called for psychiatric and Drug Addiction Treatment Centre reports. In his written reasons for sentence the judge did not say that he had considered the question of sending the applicant to a drug addiction treatment centre. The applicant clearly was drug dependent with a long list of convictions for drug offences but also for other offences involving violence and no doubt that was the reason the judge took the course that he did. By calling for the addiction treatment centre report the judge must have considered the possibility of ordering that the applicant be sent there, as he is required to do.

3. The judge did however take into account an amendment to the Dangerous Drugs Ordinance in June 1992 which increased the maximum sentences for simple possession from three to seven years imprisonment. However before us today Mr. McGuinniety has pointed out that this offence was committed in January 1992, prior to the enactment of that amendment. Mr. Bailey agrees that the judge should have followed the sentencing practice which was prevalent at the time of the commission of the offence (R. v. Cheung Cho Fai Crim. App. 425/1989) and we are satisfied that at that time sentences for simple possession were in the vicinity of 9-12 months imprisonment. Here the amount involved is substantial and prior to the amendment of the legislation would have attracted the presumption of possession for the purpose of trafficking. Considering the amount involved, while it should have been in accordance with the practice at the time prevailing in January 1992, the proper sentence should also be at the top end of the scale.

4. We therefore allow the application, treat this as the hearing of the appeal which is allowed to the extent that the sentence is reduced from two to one year's imprisonment.