Rigby J:

The appellant in this case was convicted of unauthorised possession of a quantity of raw opium, contrary to the provisions of s. 6 of the Dangerous Drugs Ordinance, 1952. He was sentenced to pay a fine of $10,000 or 18 months' imprisonment in default of payment. The maximum fine under s. 6 of the Ordinance is, in fact, $10,000. No reason is given by the learned President as to why he imposed the maximum fine. It may well be, however, that he was of the opinion that having regard to the wording of s. 6 he has no alternative but to impose that particular fine. The relevant words of s. 6 are that a convicted person "shall be guilty of an offence against this Ordinance and liable on conviction to a fine of $10,000 or to imprisonment for a term not exceeding five years or to both such fine and imprisonment." Mr. Jayadeva, for the appellant, pointed out that in other penal ss. 6 of this Ordinance the fine specified in the section itself to which a person is liable on conviction is preceded by the words "not exceeding". In this section - s. 6 - the words have been omitted. It may well be that the learned President felt that having regard to the difference in the wording of the sections it was mandatory on him on conviction to impose a fine of $10,000. Mr. Jayadeva has referred, however, to the case of Ng Chwee Puan v. Reg [1953] MLJ 86. In that case the question under consideration was the meaning of the words under a particular bye-law imposing a penalty where the bye-law itself provided that upon conviction the offender was liable to a "fine not exceeding $25 or in the case of a continuing offence to a fine of $10 for every day during which the offence is committed". The Magistrate there held that whilst he had a discretion is regards the imposition of the fine for the offence itself, as regards the continuing offence he had no discretion and that it was mandatory upon him to impose a fine of $10 a day for every d ay it continued. The learned Judge considered however, that the bye-law was imperfectly drafted and he held that the word "liable" contained no obligatory or mandatory connotation and there was, in fact, a discretion to impose a fine up to $10 a day for the continuing offence itself.

The learned Deputy Public Prosecutor concedes that the construction Mr. Jayadeva seeks to put upon the section is in fact the correct one and that the penalty provided of a fine of $10,000 is in fact a maximum penalty giving the Court a discretion to impose any fine within that maximum.

I am, of the opinion that the learned President clearly had a discretion to impose a fine of any sum within the maximum amount of $10,000.

The learned Deputy Public Prosecutor has conceded in this case that the fine of $10,000 in the particular circumstances of the case was excessive. I agree. Despite the fact that the quantity of raw opium involved was large, 17'bd lbs in all, it would seem on the facts of the case that the appellant was a carrier at most and not the principal person behind the offence itself. The appellant is a lorry driver, aged 22, with a wife and a small child. In the circumstances of the case I, therefore, reduce the fine to one of $2,000, or 18 months' imprisonment. I am informed by Mr. Jayadeva that the appellant is, in fact, in a position now to pay the sum of $1,000. I therefore direct that the sum of $1,000 be paid forthwith and the balance within 30 days from today.

Order accordingly.