Case Detail

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.461 OF 1972

________________________

BETWEEN

	1. YUEN Chi-mo 2. TSUI So-Chun (female) 3. HUI Mei-ling (female) 4. HUI Mei-chun (female)	Appellants
	and
	THE QUEEN	Respondent

________________________

Coram: Rigby, C.J., Huggins & McMullin, JJ.

________________________

JUDGMENT

________________________

Huggins, J.:

1. This is an appeal against sentences of seven years’ imprisonment passed upon each of the Appellants on a charge of possession of dangerous drugs for the purpose of unlawful trafficking and upon the 1st Appellant on an additional count for a like offence, the two sentences in his case being concurrent.

2. The 1st Appellant was arrested in the street. He was carrying a cardboard carton containing 2,530 packets and these in turn contained a total of 1,708.6 grammes of a mixture which included 721.9 grammes of salts of esters of morphine. He then took the police to a flat where the other three Appellants were found and arrested. In the flat were a further 2,500 packets containing a total of 5,542.9 grammes of a mixture which included 2,564.3 grammes of salts of esters of morphine. It was apparent from the paraphernalia found that the flat was being used as a distribution centre and the 1st Appellant was no doubt acting as a courier at the time of his arrest.

3. The 1st Appellant was just under twenty years of age at the date of the trial, the 2nd Appellant a woman of 68 and the 3rd and 4th Appellants were sisters aged 20 and 30 years respectively. It will thus be seen that two of the Appellants were persons to whom s.109A of the Criminal Procedure Ordinance applied. On behalf of the 1st Appellant the first ground of appeal is that the learned judge did not consider whether any form of punishment other than imprisonment was appropriate, but he expressly said:

“... nor does one want in the case of a young person to send them to prison for such time as they may become institutionalised ......
... I must pass such sentence which will bring home to others who might be tempted to engage in this trade that there can be no advantage in it”.

I cannot believe that he made these observations without any reference to s.109A, particularly as his attention had very clearly been drawn to the section by counsel in a plea in mitigation. In fairness to counsel it must be added that he did not seek to support the ground of appeal as framed but rather to argue that the judge was wrong to find that there was no other appropriate method of dealing with the 1st Appellant and that in making his finding on this point the judge was wrong to have regard to the deterrent effect on others of the sentence he was about to pass. Counsel points out that the Legislature has seen fit to except some offences from the operation of s.109A, including some offences under the Dangerous Drugs Ordinance, and submits that that is an indication that the Legislature intended deterrent sentences to be available only in respect of excepted offences. I cannot accept that contention. It must be borne in mind that when s.109A was originally enacted there were no exceptions, and for that reason alone I do not obtain any assistance in interpreting the section from the subsequent legislation. Apart from this it seems to me that the form of the proviso does not support the contention made on behalf of the 1st Appellant: there is nothing to show that the Legislature intended to remove from all consideration by the court, in a case involving an excepted offence, the deterrence factor. I cannot accept that “the duty of the court is to sentence the offender and not the offence” if by that is meant that the court is not to pay full regard to the nature of the offence committed and to its possible effects upon the public weal. In every case the court must have regard to all relevant factors. In some cases the circumstances will require that more weight be given to a particular factor than in others and there may be cases where that factor is of such minimal weight that it cannot affect the ultimate decision. In Attorney General v. WONG Chi-fai Application for Review No.8 of 1972 I recently said:

“.... it must be recognised that there are cases ..... where the circumstances are such that the public interest calls for a sentence in the assessment of which deterrence is the predominant factor. There are even cases where the need of deterrence is so great that, in the event, the sentence should not reflect at all the personal circumstances of the offender”.

In my view in cases like the present, where large quantities of dangerous drugs are involved, deterrence must usually be the predominant factor but I do not think that in this particular case the sentences should not reflect at all the personal circumstances of the offender. In the case of a young offender convicted of a non-excepted offence the court is bound by the statute to give special weight to the desirability of keeping him out of prison. Even so there must inevitably be cases (as is recognised by the wording of s.109A itself) where a sentence of imprisonment is appropriate. It may be appropriate either because of the depravity of the offender, as evidenced by the nature of the offence or by his past record, or because the injury to the public resulting from the offence requires that others shall be deterred. To adopt any other view in cases like the present would be to encourage the practice, already far too common, of employing young persons in the more active side of dangerous drug distribution. The learned judge, with ample justification, took the view that imprisonment was the only appropriate method of dealing with the 1st Appellant (and, incidentally, with the 3rd Appellant) and this appears not only from the words he used but also from the fact that he thought the imprisonment should be for no less than seven years.

4. On behalf of the 1st Appellant two other matters were urged. First it was said that he was an uneducated youth who in 1968 or 1969 came to Hong Kong because his family thought he might better himself here. He undoubtedly found life hard upon his arrival and although he had several jobs he was unemployed at the time he entered the drug traffic. Again, it is obviously those who are down on their luck who are the natural target for enlistment into the drug traffic. It would be inhuman to conclude that that was itself a reason for deterrent sentences were it not for the inhuman consequences of the traffic. It seems to me that these consequences are such that they must inevitably outweigh the mitigating factor of the 1st Appellant’s age. If it is undesirable to send a young offender to prison at all, a fortiori it is undesirable to send him to prison for a long period. However, suppose a young defendant were proved to have taken part in the tying up of even two or three persons and the gouging out of their eyes in return for a payment of money, can it be doubted that he would be sentenced to a long term of imprisonment? Not only must society express its disapproval of such conduct: it must punish it in a manner which may help to prevent a recurrence. Of course the analogy is not complete but I venture to think it is not as invalid as may at first appear and that the very point at which it breaks down indicates the greater rather than the less relevance of the deterrent factor where trafficking in drugs is under consideration. I recognise that a person who is offered drugs is usually in a position to decline them. Even so there are those whose will to resist the temptation to accept is weak, whether as a result of existing drug addiction, inherent weakness of character or some other cause. In a sense such persons are as much bound and at the mercy of the traffickers as would be the victims of the physical assaults I have postulated to their assailants. However, the unlawful distribution of dangerous drugs leads to more than the destruction of a person’s sight: it leads to the destruction of the drug taker as a human being – and where the quantity of drugs is such as it was in the present case the number of persons likely to be affected is not limited to two or three. It is true that the damage resulting from the traffic in dangerous drugs is less direct and less immediate than that resulting from a battery. The drug trafficker is not immediately confronted with the full horror of the results of his acts and, indeed, may never see those results. However, an insidious poison can kill with the same thoroughness as, though without the merciful swiftness of, a sudden knife thrust to the heart. Murder by poisoning has for long been regarded with peculiar abhorrence, but such is the blindness or callousness of some that they cannot will not see that the unlawful use of dangerous drugs is as damaging to society. It is a function of deterrent sentences to substitute for the natural abhorence which ordinary men would feel terror of the punishment which is society’s expression of its disapproval. I will not subscribe to the selfish view that whether or not he will take dangerous drugs is a matter for each individual and that therefore traffickers in dangerous drugs are really concerned in nothing more than a commercial operation with which the state should not concern itself: no man can live unto himself in our society. I think that these facts, if not self-evident, have been so well publicised that no mentally normal man or woman in Hong Kong who has reached the age of 19 years can be wholly ignorant of them. Consequently I cannot regard the youth of the 1st Appellant as a factor of greater weight than was accorded to it by the learned trial judge.

5. It is then emphasised that the 1st Appellant pleaded guilty and assisted the police and it is suggested that the fact that he received the same sentence as the other Appellants shows that this factor was not given sufficient weight. While it is true that the 1st Appellant was convicted on two counts and the others upon only one I do not think the two offences were fairly distinguishable in judging the severity of sentence as between the Appellants. What might tend to weigh against him is that the flat had been rented in his name, but it is possible, especially having regard to his youth and background, that he was a mere nominee for someone else. I therefore incline to the view that insufficient weight was given to the plea of guilty and that some small reduction of sentence should be made in his case.

6. An aggravating factor in the case of the 2nd Appellant was the fact that she had a previous conviction for unlawful possession of dangerous drugs and had been sentenced to five years’ imprisonment in 1967, when she was 63 years of age. That sentence appears to have made little impression upon her for we find her repeating her offence so soon after her release from prison. Again, the learned judge expressly referred to his distaste at having to sentence an old person to a long term of imprisonment and I think there is a necessary inference that he thought the 2nd Appellant’s previous conviction must be set off against her old age. But she was clearly a leading light in this business and had she been twenty years younger a sentence of ten years’ imprisonment might well have been appropriate. I do not think too much weight should be attached to the fact that in WONG Yim-yu v. Reg. 1972 H.K.L.R. 6 the court did not increase a sentence of seven years’ imprisonment for an offence involving a much larger quantity of dangerous drugs. I am not unmindful of the fact that the 2nd Appellant has no relatives in Hong Kong and would have difficulty in obtaining employment at her age, but she was not alone in that situation and there are governmental and charitable organization from which the aged can obtain assistance when necessary. It has been suggested that the 2nd Appellant is in failing health, but the evidence which has now been produced does not support the contention. As the Chief Justice said in the course of the argument, where poor health of an appellant is alleged it is always desirable that a physician be called or an affidavit filed. I see no reason to interfere in the case of the 2nd Appellant.

7. The appeals of the 3rd and 4th Appellants can conveniently be considered together. Both had clear records. They come from a family in which there are four children aged twelve or under. The father, the Appellants and a brother were usually earning and, in addition to supporting the young children, were supporting a brother at college: the mother is ill and cannot work. At a time when the Appellants were unemployed they are said to have been approached and to have been offered a wage of $20 a day to do the work which has led to their conviction. The 4th Appellant is said to have divorced her husband for desertion and to be left with a daughter aged six years to support. No doubt the learned judge in sentencing both to the same term as the other Appellants thought the 4th Appellant’s matrimonial difficulties should be balanced against the 3rd Appellant’s youth. It is impossible to weigh these matters with great nicety but we must conclude that the learned judge thought that in the end there was no sufficient reason to distinguish the 3rd Appellant from her sister or the other Appellants. I see no reason to believe that he failed to consider any relevant factor, but I have come to the conclusion that it would be right to give more weight than the judge can have given to the lack of guidance which a young girl is entitled to expect from a much older sister. While the deterrent factor outweighs the individual factors in relation to the other Appellants, in relation to this young woman the individual factors appear to me to assume greater importance.

8. In the result I would dismiss the appeal of the 2nd and 4th Appellants but I would allow the appeals of the 1st and 3rd Appellants. The maximum allowance we could properly make in the case of the 1st Appellant for his plea of Guilty would reduce his sentence to six years’ imprisonment and I would consider that appropriate. The 3rd Appellant did not plead Guilty but in this she may still have been influenced by the example of her sister and I would reduce the sentence imposed upon her to one of 4 years’ imprisonment.

19th January, 1973.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.461 OF 1972

________________________

BETWEEN
	YUEN Chi-mo TSUI So-chun (female) HUI Mei-ling (female) HUI Mei-chun (female)	Appellants
	and
	The Queen	Respondent
________________________

Coram : Rigby, C.J., Huggins and McMullin, JJ.

Date : 19th January 1973.

________________________

JUDGMENT

________________________

Rigby, C.J.:

1. It is a matter of personal regret to me that I should find myself unable to agree with my brother judges as to the appropriateness of the sentences to be imposed, or which have been imposed, in this case.

2. Although, in fairness to the learned judge, he has given his reasons for imposing, in regard to each offender, the same sentences of seven years’ imprisonment, this was, in my view, essentially a proper case for the scaling down of the sentences imposed and not a case in which each one of the convicted persons should have been sentenced to the same term of imprisonment.

3. In so far as the second appellant is concerned, the 68 year old female, I agree that the sentence of seven years’ imprisonment was entirely appropriate. In March 1967, she was convicted in the Supreme Court of precisely the same type of offence – possession of dangerous drugs – and sentenced to five years’ imprisonment. She was released from prison with full remission of sentence on the 6th July, 1970. She was convicted of this further offence on the 7th February, 1972. It must surely be clear beyond doubt that she committed this further offence with her eyes wide open, both as to the seriousness of the nature of the offence itself and the likelihood of a heavy sentence in the event of her being discovered, prosecuted and convicted. It was a calculated risk which she chose to take and she must pay the consequences. Counsel, in arguing her appeal against sentence, referred to her age – 68 years. The learned judge himself described her as “an old lady”. In imposing sentence, I have no doubt whatsoever that the learned judge took her age into consideration and that the sentence might well have been substantially heavier but for that factor. I would have no hesitation in dismissing her appeal.

4. The position with regard to the three other appellants is substantially different: all three of them have clear records and have never been in trouble before. That, in itself, in my view, is a very relevant factor which calls for a clear and substantial distinction between the sentence imposed upon the second appellant and upon the three other appellants.

5. Turning first to the case of the first appellant. He is a young man aged 20. He came here, together with his elder brother, in October 1969, apparently swimming across from mainland China. Since his arrival here he has led a hand-to-mouth existence, taking odd jobs when and where he could get them. According to his own statement, as put before us by counsel, during this period he came to know a man whom he describes as “Ah Hong”. During a time when he was unemployed Ah Hong approached him and offered him employment as a delivery boy. He was employed in delivering what Ah Hong described as “medicine” and which he himself had first genuinely believed was medicine. Later, he came to realize that what he had believed to be medicine was, in fact, dangerous drugs and he attempted to withdraw from his employment, but Ah Hong made it clear to him that he was now too deeply involved to be able to withdraw. When later arrested by the police for possession of dangerous drugs he at once admitted his offence and took the police back to the flat in which the three female appellants were found and in which a further substantial quantity of dangerous drugs were found. He alone, of all the accused, pleaded guilty to both charges – possession of drugs found upon him at the time of his arrest and joint possession of the drugs subsequently found in the flat to which he himself took the police. Evidence was given at the trial that the lease of the flat was in his name. The flat was a relatively large and comparatively well-furnished one. It must surely have been apparent to anyone conversant with the circumstances of the letting of that flat that this young man was in no position to lease the flat and certainly in no position to pay the rent and that he was clearly a “front” for someone else. All the circumstances of the case point clearly to the fact that this appellant was simply being made use of.

6. Upon the original hearing of this appeal we adjourned the case in order that we might have before us probation officers reports or Social Welfare reports in respect of the appellants, and a further report from the Commissioner of Prisons as to whether or not the second appellant was suitable to be sent to a training centre. Those reports are now before us. In his report the Commissioner of Prisons expresses the view that the nature of this particular offence – possession of drugs for the purposes of trafficking – is such that he does not consider the present appellant suitable for detention in a training centre. That is a view which, although not binding upon any court, is nevertheless a matter which, as Mr. Caird, Crown Counsel, puts it, should not lightly be disregarded by a court. The Commissioner of Prisons may, for good reason, regard young persons found in possession of drugs in circumstances which raise the clear inference that such possession was for the purposes of trafficking in those drugs, as a security risk in a training centre. The probation officer’s report on the second appellant is unusually and uncharacteristically unhelpful in that he appears to have confined his inquiries to the background and circumstances of the appellant without expressing any view as to his character and personality.

Section 109A of the Criminal Procedure Ordinance expressly provides that:–

“109A. (1) No court shall sentence a person of or over sixteen and under twenty-one years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate;”

7. Despite the obvious seriousness of this type of offence, bearing in mind the express provisions of the above section, the actual circumstances of this case and the fact that this appellant has a clear record, I would have considered a training centre order appropriate were it not for the report made by the Commissioner of Prisons. In those circumstances, although there is no doubt in my mind that such a sentence is unlikely to be of any beneficial, rehabilitative or deterrent value to the offender himself, I would reluctantly take the view that the appropriate sentence in his case is one of three years’ imprisonment.

8. Turning now to the third and fourth appellants, who are sisters. The fourth appellant is a woman aged 30. She has a clear record and has never been in trouble before. She is a married woman separated from her husband. Like all those concerned in this case, she comes from a poor family, one of nine children and has had little education. She has a daughter, aged 8, whom she supports. She started work in a garment factory at the age of 15. Bearing in mind, on the one hand, the seriousness of the offence of which she was convicted and, on the other hand, the fact that she has never been trouble before, in my judgment the sentence of seven years’ imprisonment was manifestly excessive and I would reduce it to one of five years.

9. The position as regards the third appellant, the sister of the fourth appellant, is, in my view, an entirely different matter. In my judgment, the sentence of seven years imprisonment imposed on this 20 year old girl was grossly excessive and can in no way be supported. Indeed, Crown Counsel, Mr. Caird, with that sense of fairness which one is entitled to expect, and frequently receives, from counsel appearing on behalf of the Crown, has said that if this appellate court considers that personal circumstances are a valid consideration for making a distinction in sentences impose upon joint offenders, this case provides ample justification for a clear differentiation in such sentences. This appellant is a young unmarried girl aged 20. She has no record and has never been in trouble before. To my mind it would seem a reasonable and proper inference that this young girl must have been, to a very large extent, under the influence of her sister, the fourth appellant, a married woman 10 years’ older than herself. Any lengthy sentence imposed upon a young unmarried woman of this age must surely be ruination of all her prospects in the future. Whilst fully acknowledging the seriousness of this type of offence, I cannot and do not accept that the interests of the community require that this young woman, hitherto of good character, should be sent to prison for seven years or, indeed, anything approaching that term of sentence. She has now been in prison serving her sentence since the 9th June, 1972 – a period of just over seven months. I would reduce the sentence of seven years’ imprisonment imposed upon this appellant to one of twelve months’ imprisonment which, allowing for remission of good conduct, would enable her to be released in a matter of some three weeks.

10. If, indeed, it is to be said that the reduction in sentences which I would make do not adequately maintain the seriousness of this type of offence, then my answer is that the sentence of seven years’ imprisonment imposed upon the second appellant is, in itself, a sentence which illustrates and fully reflects the seriousness with which this offence is regarded by the courts.

Bokhary (Lau & Lo) assigned for the 1st Appt.

R. Rang (Alexander Tsang & Co.) assigned for 2nd Appellant.

Bernachhi, Q.C. & R. Tang (Lau & Lo) for 3rd and 4th Appellants.

Caird, C.C. for Crown/Respondent.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.461 OF 1972

________________________

BETWEEN
	YUEN Chi-mo TSUI So-Chun (female) HUI Mei-ling (female) HUI Mei-chun (female)	Appellants
	and
	The Queen	Respondent
________________________

Coram : Full Court (Rigby, C.J., Huggins & McMullin, JJ.)

Date : 19th January 1973.

________________________

JUDGMENT

________________________

McMullin J.:

1. I agree with what has been said in the judgment which has just now been delivered both as to its effect and as to its contents generally. The Commissioner in passing sentence evidently took the view that the offence was, in itself, of such a serious nature that there was no justification for making any distinction between the four appellants, all of whom had co-operated in the management of an active cell for the dissemination of dangerous drugs. In so far as he based himself on the paramount importance of deterrence in all such cases he was, with respect, clearly right; again it would be impossible for me to say that he erred in principle in concluding that the only appropriate form of punishment was imprisonment. There were, however, fairly substantial differences between the four appellants in respect of age, background and, from the reports now received, in character which were relevant, some of which I think were not given sufficient weight in choosing what was in the nature of a “blanket” deterrent sentence for all four. Serious though the offences were, I doubt that this could be regarded as a case of that utmost gravity which might justify a judge or magistrate when dealing with several accused persons disregarding all save the purely deterrent factor. It is for this reason only that I feel we are justified in interfering with the sentences to any extent whatsoever. The course now proposed by the majority in this court will, I believe, give expression, not perfectly, but to some sensible degree to the requirements of deterrence and individualisation, interests between which there must always be some degree of tension.

2. I would like to add that, in my view, the sentences which it is now proposed to substitute for those imposed in the court below on the first and third accused, far from being untoward, are in reasonable accord with the recent trend of sentencing in respect of such offences, both in these courts and in those of the United Kingdom, If youth, because of inexperience, subjection to family influence or the like, is to be regarded as sufficient on its own, or even when allied to clear record and a plea of guilty, to warrant a drastic differentiation as to sentence between several co-accused all of whom have played actual parts in trafficking in or manufacturing dangerous drugs, it is all too likely that those who are concerned with the recruitment of volunteers to this nefarious underground will not be slow to regulate their practice by reference to any such selective clemency. Yet to choose at random cases for the exercise of the court’s compassion on grounds of youth would obviously be unjust. The dilemma is plain : if youth and prior innocence are to be regarded as exceptional mitigating circumstances it should be so in all cases, yet it is just such a principle which carries in it the danger to which I have referred above, a danger which is eloquently highlighted in the judgment of Lord Justice Salmon in Reg. v. Daher^([1]) concerning a sentence of 3 years on a youth of 19 for importation of cannabis. Again, youth and clear record certainly do not appear to have been regarded as noticeably mitigating factors in the recent English case of Reg. v. Owens and Weinberger, a brief account of which may be found at page 295 of the Criminal Law Review for 1972. In that case two Americans, aged 20 and 23 respectively, who were students at an English university, pleaded guilty to possession and importation of drugs. They were found in possession of 1060 grammes of cannabis and the elder of the two was, in addition, found in possession of 100 tablets of L.S.D. Correspondence in possession of the younger man showed that he and his companion proposed to set up a scheme with another person for having cannabis sent to the U.S.A. in return for L.S.D. which was to be sent to England. The younger man was sentenced to 6 years imprisonment and elder to 5. It was said in that case that the profits available from this kind of traffic were so substantial that the courts would not be doing their duty if they failed to impose such sentences as would make it clear that this kind of crime would not be allowed to pay. When one considers that the drugs involved in the present case, in quantity, in value and above all in their nature and the disastrous consequences thereof, greatly exceed the subject matter of the charges in the English case and when one has regard also to the vastly greater size of the drug problem in Hong Kong generally, I do not think it can be said that the scale of the sentences now proposed can be regarded as in any way excessive. For these reasons I am in agreement with the order which has been proposed by my brother Huggins.

([1]) 53 C.A.R. 490.

YUEN CHI MO AND OTHERS v. THE QUEEN

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