TANG YIM v. THE QUEEN
Because the appellant did not give evidence and merely relied on silence, the presumption of trafficking arising from possession was not negatived; the original sentence of twenty-seven months was manifestly excessive and was reduced to eighteen months' imprisonment.
Source-derived case information.
- Citation
- TANG YIM v. THE QUEEN
- Parties
- Appellant: TANG YIM; Respondent: THE QUEEN
- Court
- Court of Appeal
- Jurisdiction
- Hong Kong
- Case Number
- CACC243/1972
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- Appeal allowed in part; sentence reduced.
- Legal Topics
- Possession of Dangerous Drugs, Presumption of Trafficking, Sentence Reduction, Right to Silence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
TANG YIM
Appellant
THE QUEEN
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether possession of the specified quantity of drugs supports a legal presumption of intent to traffic
- 2 Whether the appellant negatived the presumption by remaining silent and not giving evidence
- 3 Whether the sentence of twenty-seven months was manifestly excessive
Ratio Decidendi
Because the appellant did not give evidence and merely relied on silence, the presumption of trafficking arising from possession was not negatived; the original sentence of twenty-seven months was manifestly excessive and was reduced to eighteen months' imprisonment.
Court Disposition
Appeal allowed in part; sentence reduced.
Orders
- Appeal against sentence allowed; sentence reduced from twenty-seven months to eighteen months' imprisonment.
Full Case Text
Judgment text and source record
1 paragraphs
bjbj CACC000243/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 243 OF 1972 ----------------- BETWEEN TANG YIM Appellant THE QUEEN Respondent ----------------- Coram: Leonard, J. Date of Judgment: ----------------- JUDGMENT ----------------- This is an appeal against sentence only. The appellant was properly found guilty on a charge of possession of dangerous drugs for the purposes of trafficking. The learned magistrate applying the presumption which arose because the appellant had been found in possession of a phial containing 8.5 grammes of a mixture containing 2.2 grammes of barbitone and 1.8 grammes of salts of esters of morphine. The appellant did not give evidence in the court below. Indeed in answer to the case, the appellant said, "I leave the matter entirely in your hands. I will remain silent." It was only when pressed by the magistrate (for his own good) that he suggested that the drugs were for his own use. Since he did not give evidence nor subject himself to cross-examination I consider that the learned magistrate acted properly in holding that the presumption had not been negatived. The drugs in question were contained in one container or phial. The appellant did not at the time of his arrest have any article suggesting that he had the immediate intent of disposing of the drugs to any purchasers. I have noticed a pattern in sentence for possession of drugs for the purposes of trafficking where the presumption arises and where the amount is small and is contained in a single packet or phial. In such cases the "traiff" is eighteen months' imprisonment. I consider the sentence of twenty-seven months imposed by the learned magistrate in this case to be manifestly excessive and I accordingly reduce it to the term of eighteen months' imprisonment. (P.F.X. Leonard) Puisne Judge Representation: PAGE - PAGE \* MERGEFORMAT - &`#$ CACC000243/1972 TANG YIM v. THE QUEEN Normal.dot tangq Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACC000243/1972 TANG YIM v. THE QUEEN Title Microsoft Word Document MSWordDoc Word.Document.8 CACC000243/1972 TANG YIM v. THE QUEEN Normal.dot tangq Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACC000243/1972 TANG YIM v. THE QUEEN Title