The Queen v. Cheung Chi Man

CACC000201/1988

BETWEEN

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

Date of hearing: 6th July, 1988.

Date of delivery of judgment: 6th July, 1988.

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. This is an application for leave to appeal against a total sentence of 7 years' imprisonment, on two charges of possession of dangerous drugs for the purpose of unlawful trafficking.

3. The facts of the matter were simple. Police officers in the early hours of the morning of the 18th November 1981 saw the applicant and another man acting suspiciously in Granville Road. They stopped them and eventually were led to a flat where 1,280 grammes of heroin was found together with 937 tablets of methaquilone (mandrax). The applicant admitted that together with the other man, he was in possession of these drugs for the purpose of distribution.

4. He pleaded guilty at his trial and gave evidence against the co-accused who was however acquitted.

5. He has a previous conviction for robbery in 1984 when he was placed on probation. He was 20 at the date of the offence and at the date he was sentenced, although he turned 21 a few days later.

6. Before us it has been argued that since the date of the sentence he has made a further statement and attended an identification parade and is now willing to give evidence against another man who he said is the ringleader of this syndicate. It is submitted that the sentence is manifestly excessive, that the starting point which the judge took of 10 years if there had not been a plea of guilty and assistance to the police was too high, and that he has not been given sufficient benefit for those factors.

7. The principles applicable to a reduction of sentence due to assistance given in the apprehension and trial of other offenders have recently been set out in detail by the Court of Appeal in England in R. v. Sivan and Others⁽¹⁾. The Chief Justice, Lord Lane, said there were several factors to be considered, a very important one being whether the defendant was putting himself or his family at risk. While it has been suggested such may be the case here we see nothing to support that view. Lord Lane went on to say that the Court should also consider the nature of the information given and was it in fact useful. Was the defendant prepared to give evidence? Here the Crown accepts that the defendant did give useful information and although his evidence was apparently not convincing he was doing "his incompetent best".

8. We have been referred to several other cases including Chan Chi Ming⁽²⁾ which laid down the guidelines for drug offences. We think that 10 years may have been on the high side as a starting point although not manifestly excessive. We would have thought that 9 years would have been right. We do take into account, as the judge had said, that there has been assistance and a plea of guilty. What does however count strongly against the applicant is that at the time he committed this offence he had already been charged with another offence of possession of dangerous drugs for the purpose of trafficking and he was on bail before trial for that offence, for which he was sentenced to training centre.

9. We have given anxious thought to the circumstances of this offence. We find however that the trial judge has made an adequate allowance for the plea of guilty and assistance and there is little else that can be said for the applicant. He has had every chance. He has a supportive family whom he left to go and join this drug trafficking syndicate. He rugs given a warning when he was arrested the first time for trafficking. He totally ignored that warning. He has a previous conviction for robbery in 1984 for which he was put on probation.

10. So far as his having now identified another suspect and indicated his willingness to give evidence against him, this was after sentence was passed. We therefore do not consider we can take it into account either. However if the applicant does give evidence at the trial of the other suspect resulting in his conviction that would be a matter for the Governor to consider as to a reduction of sentence, pursuant to Clause XV of the Letters Patent.

(1) The Times, July 6th 1988

(2) (1979) H.K.L.R. 491

Representation:

Richard Wong (M/s Ip, Ku & Stoppa) for Applicant

Christopher Harris for Crown/Respondent