TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 56

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(

virtue of the presumption under S.46 (c), the minimum sentence

S.46(c),

In the days of CHAN will be that of to 2 years imprisonment.

to

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CHI MING when the Court of Appeal was totally unconcerned with quality, that is, the purity of the dangerous drug, but only with the quantity of mixture, an accused convicted under S.7 for

small" quantity (up being in possession of grammes) of mixture is liable to be sentenced to the minimum of 2 years. However, LAU TAK MING has taken over and in the words

of Silke V.P. (at p385H):

а "very

"The conclusion which

CHI

MING

be

we

had reached is

that, after performing yeoman service, CHAN

and retired

its should guidelines replaced by those to be set out in this judgment."

Hence, the courts are now mainly concerned with the quantity of narcotic rather than the quantity of mixture.

That being the

case, S46 (c) seems to be superfluous or at least of very limited assistance especially if the amount of narcotic found in the six packets for which the accused is convicted of possessing for the

only contained

traces of trafficking therein,

of

the

purpose narcotic. In other words, is it right that there should remain this presumption. under S.46 (c) which deals solely with number of packets involved? Bearing in mind that any limitation on the interpretation of A.11 (1) as regards S.46 (c) must pass I find that no the three tests submitted upon by Mr. limitation is necessary nor is there any justification for the

saving of S.46(C).

Fung,

The minimum of two years laid down in LAU TAK MING which an accused convicted of possession of SEM for trafficking is to receive, is very much more severe than what an accused can expect if convicted of simple possession of the same quantity.

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