The Queen v. Chan Chun Wai

CACC000146/1989

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Coram: Hon. Cons, Ag. C.J., Power & Macdougall, JJ.A.

Date of Hearing: 23 August 1989

Date of Judgment: 23 August 1989

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J U D G M E N T

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Power, J.A.:

1. The applicant in this matter faced one charge of trafficking in 205.4 grammes of cannabis on the 18th of August 1988, one charge of offering to traffic in 3 kg. of cannabis between the 17th and the 20th of August 1988 and one final charge of trafficking in 517.8 grammes on the 19th of August 1988. He also faced one charge of resisting arrest on the 19th of August: this concerned an incident which occurred after a series of transactions involving an undercover police officer when the applicant was arrested by the police. He was convicted on all charges. The appeals against conviction have already been dealt with and it remains only for us to deal with the appeals against sentence.

2. As we have indicated he was arrested as a result of an undercover police operation in which a policeman, Inspector Mason, posing as a prospective buyer of cannabis, was introduced through a person named Paul to the applicant. There were a number of meetings, at the first of which, the smaller amount of cannabis, the subject of the 1st charge was purchased. There was then a promise to obtain 3 kg. of cannabis and finally, consequent on that promise and in partial fulfillment of it, there was the supplying of the amount of 517.8 grammes of cannabis.

3. The grounds of the appeal against sentence are that firstly, the trial judge failed to consider in a proper manner that there was a degree of entrapment and that this should have been regarded as a mitigating factor; and secondly that the totality of the sentences in respect of the three charges which were part of an ongoing transaction, was not given full weight.

4. Mr. Grounds who appeared for the applicant has urged upon us that the applicant is only 24 years of age and has no previous convictions.

5. The trial judge  when sentencing referred CHAN Chi-man (Application for Review 19 of 1988) which sets out the tariff for sentences in relation to offences of possession of cannabis for the purpose of unlawful trafficking. It is accepted that the offence of trafficking itself must be regarded as being more serious than the offence of possession for the purpose of trafficking.

6. Mr. Grounds has referred us to R. v. Sang [1980] A.C. 402 and in particular to the words of Lord Salmon at p.443 where, when referring to the use of an agent provocateur, he said:

"There are, however, circumstances in which an accused's punishment in such a case might be mitigated, and sometimes, greatly, mitigated."

7. The range of cases involving an "agent provocateur" is wide. At the highest, it covers the case where the undercover agent provokes another into committing an offence which but for that provocation he might never have committed. At its lowest, the agent does no more than provide an opportunity to a person to commit an offence which he was minded, even without the intervention of the agent, to commit.

8. We cannot, as Mr. Grounds seems to be suggesting we should, speculate as to what evidence might have been disclosed had the trial taken a different course. We are bound when considering the question of sentence, by the findings of the trial judge. What he said in relation to the culpability of the applicant was this

"During his conversations, PW1 had noticed that the defendant appeared to understand what he was saying in English, because he would begin to answer before it was translated. The defendant admitted with some reluctance in cross-examination that he attended until the age of 15 a school where English was taught. He had worked for some time in bars in Wanchai. There was direct evidence, which I accepted, that he had had conversations in English. I was satisfied beyond reasonable doubt that the defendant well understood that PW1 was looking to buy drugs and had been introduced to him for that purpose. He had been a party to placing the cannabis in the toilet, evidently in conjunction with Paul It was the defendant who negotiated the price and accepted it in payment. Charge 1 was proved beyond reasonable doubt. Observing the defendant giving evidence, I formed the view that he was not an honest witness. His story was carefully constructed to suggest an innocent explanation for his presence for and his acceptance of the money and retention of some of it. I did not believe him. He raised no doubt in my mind as to the truth of PW1's evidence."

9. These findings clearly place the applicant in the category of those who are minded, with or without the intervention of an agent, to commit the offence. We are not satisfied in those circumstances that any weight can be given to this first ground of appeal

10. We turn to the second ground. It is suggested that the trial judge failed to consider the totality of the sentence which he was imposing, that he should have taken into account that all three offences were really part of one transaction. We accept the weight of this submission and that it may well be that these offences should have been dealt with as parts of a continuing transaction. But even had this been done, we are satisfied that an overall sentence of three years would have been appropriate.

11. The application for leave to appeal against the sentences is therefore refused.

Representation:

Mr. I.G. Cross and Miss Catherine S.Y. Fung (Crown Prosecutors) for the Respondent.

Mr. Christopher Grounds (M/s Tang, Wong & Cheung) for the Applicant.