LEE FOOK CHEUNG v. THE QUEEN

HCMA000524/1984

Dangerous drugs - sentence for possession for trafficking of very small amount - 2 years should not be a minimum if clear record.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 524 of 1984

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BETWEEN:-

	LEE Fook-cheung	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Hon. Penlington, J.

Date of hearding: 30 August 1984

Date of judgment: 30 August 1984

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JUDGMENT

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1. This is an appeal against conviction on a charge of possession of dangerous drugs for trafficking. The amount involved was very small - .83 grammes of a mixture containing heroin - and there was no evidence of money being paid. The drugs were found on a fellow defendant who was a friend of the appellants.

2. Mr. Midgley in his well presented argument says that the magistrate has followed R v. Chan Chi ming, C.A. 1167 of 1978 as saying that a sentence for possession of a very small quantity for trafficking should be a minimum of 2 years. What the Court there said, inter alia was

(2)	In sentencing hard drugs (morphine, heroin and barbitmates) offenders, cases should fall into four categories depending on the quantity involved, where the quantity involved was -

(a)

very small (up to 30 grammes) the sentence should range from 2 to 3 years   ..................... mitigating factors. Trafficking in dangerous drugs and possession for this purpose are offences of the utmost gravity .............. a bad criminal record and particularly one in which previous drug offences appear will be a factor which the Court should take into account and will usually result in a higher sentence than in the case of a man with a clear record.

3. Here the appellant has such a bad record, including drug offences and one for trafficking in 1976 for which he received 2 years.

4. I would not take the dicta in R v. Chan Chi-ming as saying that a 2 years is a minimum sentence for trafficking any more than it says 12 years is a maximum. There are always factors other than quantity and a person may be a large-scale trafficker deserving very severe punishment but never in fact being in actual possession of the drugs at all. This was a very small amount and there was no evidence of money changing hands. If the appellant had a clear record a sentence of 18 months would have been correct. With his record I do not think 2 years was wrong in principle or excessive.

5. The appeal against sentence is dismissed.

	(R.G. Penlington)
	Judge of the High Court

Representation:

J.N. Midgley of Haldane Midgley & Co. for Appellant.

I.M. Duguid, C.C. for the Crown/Respondent.