THE QUEEN v. YIP KAI-WAN

CACC000291/1984

IN THE HIGH COURT	Criminal Appeal
	No. 291 of 1984

BETWEEN

	THE QUEEN
	and
	YIP Kai-wan	(Appellant)

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Coram: Fuad, J.A. (Sitting as an additional Judge of the High Court)

Date of hearing: 20th June 1984

Date of judgement: 20th June 1984

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JUDGMENT

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Fuad, J.A. :

1. The appellant, who is 67 years of age, was convicted on the 6th April this year of possessing dangerous drugs for the purpose of unlawful trafficking, contrary to s. 7(1)(2) of the Dangerous Drugs Ordinance. He had pleaded not guilty and had been represented by a Duty lawyer at his trial. The prosecution sought to prove that he had been found in possession of a polythene bag in which there were 8 smaller such bags, each containing a mixture of salts of esters of morphine. The total weight of the mixture was 4.36 grammes and the weight of the salts of esters of morphine was 0.71 gramme. There were no merits in the appeal against conviction and that appeal is dismissed.

2. The appellant had 13 previous convictions for drug related offences, going back to 1967, but only one of these (in 1975) was for unlawful possession for trafficking. For that offence he was sentenced to 18 months' imprisonment. For the "simple possession" cases he has been fined once, bound over twice, and sentenced to imprisonment for various periods ranging from two to nine months. The Probation Report did not recommend probation and the S.A.R.D.A. Report showed that he was unwilling to receive treatment and rehabilitation at the Shek Kwu Chau Centre. The Medical Report indicated that in any event he was an unsuitable candidate of such treatment.

3. The Magistrate gave the following reasons for imposing the sentence he did -

"I sentenced the appellant to two years' imprisonment on the basis that as an old man he had been used by others to distribute dangerous drugs. I thought deterrent sentence would be appropriate to deter the very young and the very old from involvement in drug trafficking".

4. This was certainly a serious offence, and I understand the reasons which prompted the magistrate to impose the sentence. But in view of fact that the appellant has been out of trouble since 1976; his comparatively advanced age; and the amount of dangerous drugs that was found on him (mitigating factors very fairly brought to my attention by Mr. Mcleod, for the Crown), I think the sentence was unduly severe and I therefore reduce it to one of 12 months imprisonment. To that extent the appeal is allowed.

	(K.T. Fuad)
	Justice of Appeal

Representation: