THE QUEEN v. TAM TAK CHIU

CACC000385/1986

IN THE COURT OF APPEAL

1986, No. 385 (Criminal)

BETWEEN

THE QUEEN   and   TAM TAK CHIU

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Coram: Li, V.-P., Yang & Silke, JJ.A.

Dates of hearing: 4th and 5th November, 1986.

Date of delivery of judgment: 5th November, 1986.

 

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JUDGNENT

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Yang, J.A.:

1. The Applicant was convicted of one count of possession of dangerous drugs for the purpose of unlawful trafficking. Those drugs were found on his body. He was convicted of a second count of possession of a larger quantity of dangerous drugs for the purpose of unlawful trafficking, and those drugs were found in his house. Then he was convicted of a charge of resisting a police officer in the execution of his duty. That offence arose out of an incident at the time of his arrest when the arresting officer tried to handcuff him and he pushed the officer on the chest and tried to make good his escape.

2. At the time of the offence the Applicant was just over 20 years of age. The judge took into consideration his plea of guilty and his young age and called for the necessary reports. Probation was not recommended by the Probation Officer who inquired into his background. On the other hand the Correctional Services Department recommended a period of detention in a training centre as being appropriate. The judge having considered all the circumstances of the case came to the view that an appropriate sentence would be either detention in a training centre or a term of imprisonment for a substantial period of time. In view of the large quantity of drugs involved, he imposed a total of 4½ years' imprisonment.

3. It was argued on his behalf this morning that the judge should consider the question of rehabilitation and that it was only when there was no other suitable alternative that a term of imprisonment should be imposed. We agree with Crown Counsel that there was nothing wrong in principle in sentencing this particular Applicant to a substantial term of imprisonment in the light of the large quantity of drugs found. However, purely as an act of mercy and as rehabilitation might well work here - and this is not a criticism of the trial judge - we are prepared to take a chance on this Applicant, particularly in view of the fact that he was acting under the influence of another person.

4. In these circumstances, we would treat the application as the hearing of the appeal itself, allow the appeal and substitute for the sentence of imprisonment a training centre order. We would stress that this is not to be taken as a precedent in future cases.

T.L. Yang Justice of Appeal.

Representation:

Graeme A. MacKay (D.L.A.) for Applicant

G.A. Harris for Crown/Respondent