ATTORNEY GENERAL v. CHAN CHI YIN AND ANOTHER

BETWEEN

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J U D G M E N T

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Kempster, J.A. :

1. On 11th September 1987 and on the verdict of a jury Deputy Judge Gruden convicted Li Kwan Yin and Chan Chi Yin on two counts of trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance (Cap 134) and Chan Chi Yin also on a third count of possessing a dangerous drug for the purpose of unlawful trafficking contrary to section 7 of the ordinance. The circumstances have just been described by Power JA when giving judgment on Li's application for leave to appeal against conviction.

2. On 25th September the judge sentenced Li to eight years' imprisonment on each of the counts on which he had been convicted, the sentences to run concurrently, and Chan likewise on each of the trafficking counts and to ten years' imprisonment on the section 7 count. Again all sentences were ordered to run concurrently. Both men were of previous good character and we take such account of that consideration as is proper in this class of case.

3. By leave, the Attorney General seeks review of those sentences, pursuant to section 81A of the Criminal Procedure Ordinance, on the grounds that they are manifestly inadequate and wrong in principle.

4. The quantities involved in the section 4, trafficking, counts were respectively 8,170 and 8,169 grammes of mixture containing heroin. Had the offences been charged under section 7, as possessing a dangerous drug for the purpose of unlawful trafficking, the appropriate sentences in the particular circumstances would have been in the region of twelve years on the basis of guidelines laid down by this Court. Further, as both offences culminated at Post Offices in Kowloon on the same date, 10th April 1987, they were properly regarded as parts of one transaction so as to permit the sentences to run concurrently. Though both sections of the ordinance carry a maximum sentence of life imprisonment for reasons given by this Court in R v YeungYing Kan⁽¹⁾, section 4 offences are generally to be regarded as the more serious. However, as Mr Findlay, for the Crown, pointed out during Li's application the distinction between these two types of offence may on occasion he blurred. "Trafficking" is normally the process by which the fruits of the illicit labours of importers, manufacturers and possessors are brought to market and paid for by wholesalers, by retailers or by the wretched addicts at the end of the chain who themselves consume the dangerous drugs. The passing of money or money's worth is not, of course, a condition precedent to the commission of the offence but in our opinion the two parcels which these respondents were responsible for posting to addresses in New York cannot reasonably be regarded as unsolicited gifts and we are bound to infer that this was a transaction for money or money's worth. On the evidence sentences of fifteen years' imprisonment, to run concurrently, would have been appropriate on each of the two counts of trafficking in respect of each respondent after trial.

5. As for Chan Chi Yin's conviction for possession under section 7 the quantity involved was 18,140 grammes of a mixture containing heroin. Here the guidelines given in R v Chan Chi Hing⁽2) carry full weight. When we say "full weight" we accept without hesitation the submission made to us that it is not for this Court in giving guidelines to usurp the functions of the legislature which alone can provide for mandatory sentences. We would also hesitate to give currency to the notion that an offender coming from a good and comfortable background is entitled to more favourable treatment by this court than one who has not enjoyed such advantages and, very often, is subject to much greater pressures. The culpability of a person coming from a good background may, indeed, be regarded as the greater particularly if he is a person to whom others may look for an example. As against this we appreciate and take into account the self-induced punishment inflicted on both respondents; as to one by the loss of a promising sporting career and to the other by the loss of what was becoming a solid business. No discount fell to be made in relation to either respondent for guilty pleas, for remorse or for assisting the authorities by disclosing, at any stage the full facts surrounding these offences.

6. The quantity of dangerous drugs found in Chan's possession was very large and brings the case within the "unusually serious" category. We consider that a sentence of sixteen years' imprisonment would have been appropriate after trial. The dangerous drugs in question were found, fortuitously, on 10th April 1987 but not at a post office. The unlawful possession was unconnected with the acts constituting "trafficking". Accordingly any sentence for the section 7 offence should, classically, run consecutively to the sentences imposed for trafficking. However, a sentence of thirty-one years' imprisonment for Chan would be inordinate. The totality principle demands that we invoke section 68 of the Criminal Procedure Ordinance which reads :-

"where the court sentences any person to undergo a term imprisonment for an offence and such person .... has been at the same session of the court sentenced to undergo imprisonment for another offence, it shall be lawful for the court to direct that such imprisonment shall commence at any time during .... the term of imprisonment which such person .... has been so previously sentenced to undergo, as aforesaid".

By the application of such principle we consider that the overall sentence of imprisonment which could property have been passed upon Chan at trial to be eighteen years.

7. Now coming to the order of this Court, we make the usual allowances for the circumstances of review, canvassed before us by Mr Corrigan for Chan, and, being satisfied that they were manifestly inadequate, quash the sentences passed by the trial judge. We substitute sentences of eleven years imprisonment in relation to each of the trafficking counts, to run concurrently, and a sentence of thirteen years for the possession count which only affects Chan. This sentence we order so to run concurrently with the eleven year sentences for the trafficking charges, pursuant to section 68, as to give rise to an overall sentence of fifteen years. Thus Li Kwan Yin is sentenced to eleven years' imprisonment in all and Chan Chi Yin to fifteen years.

⁽¹⁾ Cr App No 120 of 1994 (Unreported)

⁽²⁾ [1979] HKLR 491