CHEUK CHUN NAM v. R.

IN THE COURT OF APPEAL

1994, No. 242
(Criminal)

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J U D G M E N T

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Bewley, J.:

1. This is the judgment of the Court.

2. The applicant was arrested in the Nam Cheung Street/Fuk Wing Street area on two different dates in August, 1993. On 21st August, 1993, he was found to be carrying in his trousers pocket a plastic bag containing 80 packets of a heroin mixture containing 12.25 grammes of salts of esters of morphine. On 27th August, 1993, the police found in a cigarette packet and a plastic bag in his shorts pocket 40 packets of heroin mixture containing 7.40 grammes of salts of esters of morphine.

3. The applicant admitted possession of dangerous drugs in each case but said they were for his own consumption. He was charged with trafficking in respect of the 21st August offence but, having heard his evidence, H.H. Judge Caird found him guilty of possession under s.8(1)(a) of the Ordinance. That was also the charge to which the applicant pleaded guilty in respect of the second offence.

4. The applicant is 43 years of age and has 17 previous convictions, many of which are for drug offences. He attended the DATC in 1975 and 1991. He is clearly a hard core addict.

5. When he appeared for sentence in this case on 5th May this year, he was serving a total of 10 months imposed in respect of four separate drug cases on various dates in November/December 1993. The judge was not therefore required under s.54A to call for a DATC report. He rightly took the 10 months into account when calculating sentence. He then imposed consecutive sentences of 21 months and 15 months on each charge, which he ordered to run concurrently with the unexpired portion of the 10 month term. The applicant now appeals against these sentence.

6. Mr Marray's grounds of appeal are that 36 months is manifestly excessive, having regard to the guilty plea, the appellant's age and long-term addiction, the quantity of drugs and the fact that he was nearing the end of a 10 months' sentence.

7. We do not know the dates of the offences for which the applicant was sentenced in November/December 1993, but it seems likely from the papers that all six offences were committed during the same period, which may have influenced the judge's decision to make these two sentences concurrent to the 10 months.

8. Since June, 1992, the maximum sentence for s.8 possession, following conviction on indictment, has been 7 years' imprisonment. In R. v. Chiu Hung Wong and R. v. Choi Tung Ching CA39/1993, this Court recognised the change of emphasis and held that higher sentences might be imposed that took into account the quantity of drugs.

9. In those cases the quantities of salts of esters of morphine were 14.37 grammes and 16.31 grammes respectively. Sentences of two years were upheld in each case, the Court recognising the latent risk factor in possession of such quantities. But in Choi Tung Cheung the Court said the judge was wrong to order the two year sentence to run consecutively to an 18 month sentence that the applicant was then serving. Eight months were ordered to run concurrently with that sentence.

10. We were also referred to R. v. Tam Man Kit CA656/1993, in which the Court said it was difficult to suggest guidelines for sentence for this offence, but it should not exceed the sentence which would be passed for trafficking in accordance with the Lau Tak Ming guidelines. In Tam Man Kit the sentence was reduced to 2 1/2 years in respect of a quantity of approximately 15 grammes.

11. In spite of the slightly higher quantity in this case - 19.65 grammes - and having regard to the applicant's pleas of guilty, we think that a total term of three years is an excessive sentence. We would reduce this to 2 1/2 years. To achieve this, we order that six months of the sentence on the second charge should run concurrently with the sentence in the first charge. Treating the application as the appeal, we allow the appeal and reduce the sentence accordingly.