CHAN TING-HON v. THE QUEEN

CACC001005/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 1005 OF 1971

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BETWEEN
	CHAN Ting-hon	Appellant
	and
	THE QUEEN	Respondent

Coram: Leonard J. in Court

Date of Judgment: 25th February, 1972.

 

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JUDGMENT

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Leonard J.: This case provides yet another illustration of the necessity for care in completing the record of appeal and furthermore in completing the certificate of conviction for the learned magistrate's signature. It is clear from the learned magistrate's note that he intended to convict under Section 7 (1) of the Dangerous Drugs Ordinance for the offence of possession for the purposes of trafficking. In the record as supplied to the court this is rendered Section 87 (1). Clearly the typist read an S as an 8 and this was not corrected when the record was checked. The learned magistrate's clerk when making out the certificate of conviction for signature by the magistrate stated that the conviction was for simple possession contrary to Section 8 (1) (a) of the Dangerous Drugs Ordinance. The appellant therefore comes before me convicted of an offence under the latter Section. Crown Counsel has very fairly drawn my attention to these discrepancies in the record. He submits and I agree that it is to the certificate of conviction signed by the magistrate rather than to the notice of appeal or the magistrate's original notes that one must look to determine the offence with which he was convicted. The appellant therefore comes before me as a person found guilty of simple possession of 9.7 grammes of a mixture containing 4.3 grammes of salts of esters of morphine. This is ironic as he appeals against sentence for the more serious offence of possession for the purpose of trafficking. When passing sentence the learned magistrate said:

"This is a serious offence. I note also that defendant has a conviction for selling dangerous drugs. I think a substantial sentence is called for in the public interest."

These sentiments maybe equally applicable to a conviction for simple possession and to a conviction for a conviction for possession for the purposes of trafficking. The sentence passed, however, is considerably in excess of that which one would expect for simple possession, while it would not be manifestly excessive (indeed it would be appropriate) on a charge of possession for the purpose of trafficking as the appellant had one previous conviction for selling dangerous drugs. Since I am faced with the position that the appellant comes before me as a person guilty of possession of dangerous drugs simpliciter I cannot permit to stand a sentence which is appropriate only to possessi for the purposes of trafficking. This appeal must therefore be allowed and a sentence of twelve months' imprisonment substituted for that of two years. The family of the appellant is recommended to the attention of the Social Welfare Department.

2. I am conscious that in reducing this sentence as I have done some injustice may have resulted - a drug trafficker has received an inadequate sentence. If the result is greater attention to the accurate completion of case papers more good than evil will, I am convinced, come of it.

 

 

	(P.F.X. Leonard)
	Puisne Judge

 

25th February, 1972.

 

Representation:

Appellant in person.

Carollan, C.C. for Respondent.

(Oral judgment reduced into writing)