R v Hosang; R v Burton

• Jurisdiction: Cayman Islands
• Judge: Schofield, J
• Judgment Date: 01 May 1989
• Court: Grand Court (Cayman Islands)
• Docket Number: No. 157 of 1989
• Date: 01 May 1989

R.

and

Hosang

R.

and

Burton

Schofield, J.

No. 157 of 1989

Grand Court

Criminal law - Appeal against sentence — Two charges of possession of cocaine with intent to supply — Sentenced to 5 years imprisonment, fined $3,000, 6 months imprisonment in default and 3 years imprisonment, $2,000 fine, 4 months imprisonment in default — Deportation recommended — No means enquiry conducted — First sentence out of line with the authorities — Five years imprisonment reduced to 4 years and periods of imprisonment in default of payment reduced to 6 weeks and 4 months respectively.

Criminal law - Appeal against sentence — Possession of cocaine — Sentenced to 2 years imprisonment with $1,000 fine 4 months imprisonment in default — Deportation recommended — Culpability less than that of first appellant — No means enquiry conducted — Period of imprisonment reduced to 15 months; fine reduced to $100, 2 weeks imprisonment in default.

Appearances:

Mr. Hampson for appellant

Mr. Furniss for appellant

Mr. Sheehon for the Crown

Schofield, J

1 At about 9:00 p.m. on the 21 ^st August, 1989, officers of the Cayman Islands Drug Squad were on patrol in Smith Road, George Town, when they stopped a rented motor car which was being driven by Amos Hosang. Vernal Burton was in the front passenger seat. Both men were searched and small packet of white substance resembling cocaine was found on Burton. He was arrested and, after caution, told a police officer that he did not know what the substance was and that it had being given to him by Hosang. Hosang confirmed that he had given it to Burton.

2 A search was later conducted of Hosang's apartment and a further packet containing a similar white substance was found inside an open box of disposable diapers. Both packets and contents were sent for analysis and the packet found on Burton contained 21.9 grams of cocaine hydrochloride. The packet found in Hosang's apartment contained 10.6 grams of cocaine hydrochloride.

3 Hosang is a visitor from Jamaica who freely admitted to the police that he had brought the cocaine into the Cayman from the United States of America and was using the proceeds of its sale to fund his holiday here. He pleaded “guilty” to two charges of possession of cocaine with intent to supply, contrary to section 3 (1) (m) of the Misuse of Drugs Law (Revised).

4 Burton had been given a lift by Hosang on the night in question. When the car was stopped by the police Hosang handed the packet of cocaine to Burton and told him to hide it. Burton pushed it into the waistband of his trousers. That Burton was not involved in intending to supply the drug was accepted by the prosecution who charged him with one count of simple possession of cocaine, contrary to section 3 (1) (k) of the Misuse of Drugs Law (Revised). Burton also pleaded “guilty” to the charge.

5 For possession of 29.1 grams of cocaine with intent to supply (3300/89) Hosang was sentenced to serve 5 years imprisonment and was fines $3,000.00 with a period of six months imprisonment in default of payment. For possession of 10.6 grams of cocaine with intent to supply (3299/89) he was sentenced to serve 3 years imprisonment, to run concurrently with the other sentences, and was fined $2,000.00 with four months imprisonment in default of payment. Burton was sentenced (in 3298/89) to 2 years imprisonment on the one charge, with a fine of $1,000. 00 or 4 months imprisonment in default of payment. Both appellants were recommended for deportation following their release from prison.

6 Over the last twelve or so months this court has been endorsing a general upward trend in sentencing for the more serious drug offences and certain remarks reported from the Court of Appeal tend to show that this approach has been approved of. However, as the details of the cases for the period had not been collated I adjourned these appeals so that this could be done. The result is an up-to-date schedule of penalties in drug cases prepared by the Attorney General's Chambers upon which I have heard full argument. Of course the schedule gives basic details from which general comparison can be made, but I have taken the opportunity of referring to the files and case notes to enable me to make fuller comparison. As a general rule the severity of sentence in drug offenses follows the quantity of drug involved. Indeed the law prescribes a more severe maximum penalty for offences involving amounts of ounces (approximately 56.7 grams) or more. Whether cocaine is in rock or powder form has not influenced sentences in this court. Penalties for the two types of cocaine are not distinguished in the Misuse of Drugs Law and in the absence of evidence that possession of one type of drug is more pernicious to society than possession of the other these courts musty treat them equally for sentencing purposes.

7 Let me now look at some recent sentences which equate to the appeals I am here dealing with.

8 On the 14 ^th June, 1989, Christopher Roland Wilson (C.I.C.A 33/89) was searched at the airport on his arrival on a flight from Jamaica. Secreted in the waistband of three pairs of trousers in his luggage were a number of plastic bags containing a total weigh of 138.7 grams of cocaine hydrochloride. He was charged with importation of the drug and possession with intent to supply and, after a trial, was convicted and sentenced to serve four years imprisonment on each charge, to run concurrently, and his deportation was recommended. His appellant was 20 years old at the time of the commission of the offence. A strong plea in mitigation was made to this court particularly revolving around his previous good character and exemplary record and his involvement in prison activities which demonstrated his contribution. It was argued that he required rehabilitation rather than a deterrent sentence. The appeals against both conviction and sentence were dismissed by this court and the Court of Appeal.

9 On the 23 ^rd June, 1988, Noel Archbold Homes (C.I.C.A. 55/89) was caught trying to smuggle 84.9 grams of cocaine through the airport into Cayman. He was charged with importation of cocaine and possession with intent to supply it, and after pleading “guilty” to both offences received concurrent sentences of four years imprisonment. These sentences were upheld on appeal and the Court of Appeal added a fine of $50.00, as prescribed in the Misuse of Drugs Law, with a period of ten days imprisonment in default of payment. The appellant was a twenty-two year old Jamaican with one child. His brother had recently died. He was recommended for deportation following his release from prison.

10 Clive Collin Cox (C.I.C.A. 63/89) was observed by police officers in an area near to Washington Drive, George Town, and a plastic bag containing 20.5 grams of cocaine hydrochloride was taken from his mouth. He pleaded “guilty” to a charge of possession with intent to supply the drug and was sentenced in the Summary Court to four years imprisonment. On appeal to the Grand Court the sentence was reduced to two and a half years imprisonment. Collect C.J. noted that the appellant's assertion that he was not pedaling the drug but had purchased it for his own and his friends' use was a possibility which the court had to accept. In other words the court could not be sure that he was supplying the drug for gain. The appellant was twenty-two years of age at the date of the offence. He appealed to the Court of Appeal but withdrew his appeal.

11 Joyce Seymour and Patrick Green (C.I.C.A. 92/88) was found, on 29 ^th February, 1988, in a hired motor car parked off Shedden Road, George Town. Green...