HKSAR v. Chan Tze Kin

CACC000169/1997

1997, No.169
(Criminal)

IN THE COURT OF APPEAL OF THE HIGH COURT

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Coram : Hon Power, V.-P., Mayo, J.A. & Gall, J. in Court

Date of hearing : 25 November 1997

Date of judgment : 25 November 1997

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J U D G M E N T

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Gall, J. (giving the judgment of the Court) :

1. The applicant was convicted on 12th March 1997 on his own plea of possession of arms and ammunition and of trafficking in a dangerous drug. He was sentenced to six years' imprisonment for the count of possession of arms and ammunition and five years' imprisonment for the count of trafficking in a dangerous drug; one year of the second sentence to be consecutive to the first sentence, giving a total sentence of seven years.

2. The applicant now seeks leave to appeal both of those sentences.

3. The applicant was represented and agreed a summary of facts. The facts were that on the afternoon of 25th July 1996 the police laid an ambush in the vicinity of premises in Nathan Road. At 4:30 p.m. the applicant emerged from the premises into Nathan Road carrying a box. He was intercepted and searched. The box was found to contain a 0.45" calibre ACP pistol together with six rounds of ammunition. The pistol was genuine although defective. The defect was minor and required the replacement of a spring. The ammunition was live and appropriate for the pistol.

4. On the person of the applicant was found a quantity of methamphetamine hydrochloride, more commonly called "ice", amounting to 19.04 grammes of the pure drug.

5. The applicant was arrested and claimed both the pistol and the drugs were the property of one "Ah Yin" whose full name and address he gave the police. "Ah Yin" was Fan Sze Yin who was jointly charged with the applicant in respect of the possession of the firearm count.

6. The applicant made a series of admissions to the police which were set out in the agreed summary of facts. He admitted that the pistol and the drugs were found on him at the time of arrest and stated that the pistol had been given to him by Fan the day previous to his arrest and that when arrested, he was delivering it to an unknown purchaser on behalf of Fan. The "ice", he said, was given to him as payment for the delivery of the pistol. Further, he denied having written on the rental bill of the premises from which he emerged prior to arrest.

7. The first ground of appeal which the applicant raises is that the barrister representing him at the plea and who mounted mitigation on his behalf did not spend sufficient time with him to properly prepare his mitigation and that his mitigation was not properly placed before the judge. He says now that the events of the day of his arrest were the acts of a police informer who lured him to the place of arrest and trapped him by arranging to have in his possession both the drugs and the pistol. This matter was raised in full by his barrister before the trial judge who set out the prospect that the applicant may have been lured to where he was arrested and that Fei Chai Ming had arranged it by asking him to take the box containing the pistol and the "ice" downstairs for him to be in possession at the time of his arrest.

8. There is nothing in the first ground of appeal concerning the conduct of his counsel nor the matters which counsel placed before the court.

9. The second ground of appeal is that the judge did not impose a proper sentence by calling for psychiatric report or some other reports in respect of the applicant which would assist in sentencing. The fact that the applicant had been treated for psychiatric disorder was placed before the judge who did not deem it necessary in all the circumstances to ask for such a report. We find nothing in this ground of appeal.

10. The third ground of appeal is that the applicant was trapped and tricked by the people including the second accused and "Fat Boy Ming" which we take here to mean "Fei Chai Ming" and that the trial judge should have taken that into consideration.

11. The fourth ground of appeal deals with that entrapment and the details which the applicant now says represent the truth as to what occurred on the day he was arrested and the day before. In some measure, this ground of appeal runs contrary to what was admitted by the applicant and agreed by him before the trial judge and there is nothing in either the third or fourth ground of appeal to cause us concern that the trial judge had not reached the appropriate sentence and the discount to which the applicant was entitled.

12. The applicant now claims that after his arrest Fei Chai Ming went to the premises from which he emerged and there filled in a rental slip for the premises. This is contrary to what is contained in the admissions of the applicant who said that he had been in the premises prior to arrest. The applicant argues that the sentences are too high given the minor nature of his involvement in the offences and his full co-operation with the police.

13. In respect of the possession of offensive weapon count, the starting point of 12 years was an appropriate starting point given the authorities. The judge gave, in respect of mitigation and the role played by the applicant, a reduction of 50% arriving at a sentence of six years' imprisonment. This sentence is, if anything, on the lenient side and is certainly not one with which we will interfere.

14. In respect of the second count, the trial judge took as his starting point of seven years' imprisonment, which is again an appropriate term of imprisonment given the tariff set out in R. v. Ching Kwok Hung [1991] 2 HKLR 125 in respect of possession and trafficking of "ice". This, he reduced to five years' imprisonment and, looking at the totality which was warranted by the possession of firearm and "ice" in the same circumstances, overlapped one year of the second sentence to make a total term of seven years.

15. The applicant further urges upon us to reduce those sentences because of the illness of his mother and his desire to complete his university course. Neither of these are matters of such overwhelming humanitarian consideration that we need give them any weight.

16. The sentences are entirely proper. The application for leave is dismissed and the applicant is to lose two months for the period between application for leave and the hearing of the appeal.

Representation:

Mr A.A. Bruce, S.C. and Miss Amy Chan (D.P.P.), for Respondent

Applicant, Chan Tze Kin, in person