R. v. WONG YIU KWAN

IN THE COURT OF APPEAL

1995, No. 53
(Criminal)

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J U D G M E N T

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

1. This is an application for leave to appeal against sentence. The applicant pleaded guilty before Deputy Judge Candy in the District Court on 16 December 1994 to possession of a dangerous drug contrary to s.8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. He admitted possession of 46 packets of a mixture of 35.39 grammes containing 14.86 grammes of heroin.

The facts

2. On 18 November 1992 the applicant was stopped in Mongkok and the drugs were found upon him. The judge sentenced him to 3 years imprisonment, having taken 4 years as a starting point.

The application on sentence

3. Miss Remedios submits that this sentence was wrong in principle because the judge took the sentencing guidelines in R v Lau Tak-ming which are relevant to trafficking as appropriate in this case albeit it must be said that he adjusted the guidelines slightly. He said this:

"Had the Defendant been convicted after trial the sentence would have been in the region of five years imprisonment according to the guideline case."

In this he was quite wrong. As this Court has said on previous occasions a sentence will usually be wrong in principle if the sentence for possession - even since the Dangerous Drugs Ordinance has been amended - equates with the sentence for trafficking. That is what happened in this case.

Conclusion

4. As this Court has said, it is not possible to lay down guidelines for possession cases. They vary so greatly. What is important is to consider the quantity of narcotic and, secondly, the latent risk of that narcotic finding its way into the hands of the public. That last matter was not considered by the judge in this case. He appears to have accepted - as the defendant indicated on arrest - that the drugs were for his own consumption. However, having regard to the nature of the packaging and the amount, there must be at least some small risk of some of the drugs getting into public hands.

5. In these circumstances, we consider that the proper starting point would be 3 years imprisonment with a reduction for his plea of guilty to 2 years.

6. We allow the application for leave to appeal. We treat the application as the appeal. We reduce the sentence to 2 years imprisonment.