The Queen v. Cheng Wing Yuen

CACC000271/1990

BETWEEN

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Coram: Yang, C.J., Silke, V.-P. & Penlington, J.A.

Date of Hearing: 16 November 1990

Date of  Judgment: 16 November 1990

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the Court.

2. Cheng Wing Yuen and Chui Yin Mei appeared for trial before His Honour Judge Pang in the District Court on a charge sheet containing three charges. The first was possession of dangerous drugs for the purpose of unlawful trafficking: it related to 167.14 grammes of a mixture containing 157.77 grammes of salts of esters of morphine; the second was possession of apparatus fit and intended for injecting a dangerous drug: a set of syringes and the third, possession of Part I poison - 27 tablets of diazepam.

3. Cheng Wing Yuen, the applicant today, pleaded guilty to those three offences and was sentenced to 7 years' imprisonment on the first offence and fined $500 on each of the other offences. On his plea no evidence was offered against Chui Yin Mei, his girlfriend. The applicant now seeks leave to appeal against the sentence of 7 years imposed upon him.

4. The only real ground argued arises from The Queen v. Kwok Chi Kwan & Another [1990] 1 HKLR 293 to which the trial judge also referred and to which we will return in a moment.

5. Briefly the facts were that police went to premises in Junction Road in Kowloon City, the applicant answered the door to them but upon their revealing their identity closed it again, making it necessary to force the door open. Inside the room were found the applicant and his girlfriend.

6. The premises was searched and a red plastic bag containing 7 plastic packets of dangerous drugs was found, and a further quantity of drugs was found inside a blender. Another plastic bag contained the 27 tablets of Part I poison. The drugs in the red plastic bag and the blender amounted to the quantity referred to in the charge. It was clearly No.4 heroin.

7. There were also found a number of items including a scale, a yellow brush and 5 syringes, wads of empty transparent plastic bags, scissors, nail clipper, another set of scale and a number of sets of syringes in another room. It must be that there was an element of packaging concerned with this premises.

8. No evidence, it would appear, was led before the trial judge as to conversion. This is unfortunate because in these cases that form of evidence should always be led. But be that as it may, the judge did his own conversion and reached a figure, basing it on 10% purity, of 1,500 grammes. For that, given the Chan Chi Ming [1979] HKLR 491 guidelines, and the references to those guidelines in Cheng Yeung [1989] 2 HKLR 258, the appropriate sentence would be one of between 8 to 12 years' imprisonment. The trial judge took 10 years as the starting point, he then reduced that sentence by 3 years because of the plea. He noted the applicant had "three previous records", these in fact were three minor offences; two in 1988 related to theft from a vehicle and tampering with a vehicle with fines imposed and one in 1989 for simple possession of dangerous drugs, also a fine.

9. He referred himself to Kwok Chi Kwan and said this of it:

"I had also considered the case of R. v. Kwok Chi Kwan and Another [1990] HKLR 293 which is authority for the proposition that the District Court should avoid imposing where possible the maximum sentence of 7 years on plea of guilty."

10. With respect, that was not quite the point of Kwok Chi Kwan. That authority set out sentencing policy. The Court was there concerned with persons who had appeared in the District Court for offences which might have attracted a sentence higher than the 7 years maximum prevailing in that Court and were given the maximum sentence on a plea of guilty. It was said at page 296:

"Pleas of guilty are to be encouraged for various well known reasons: to give allowance for the remorse indicated by such a course - though of course 'remorse' can take many forms, from the genuine sorrow to an acceptance of the inevitable; to assist in the saving of time - thus bringing more speedily to trial cases waiting in the lists - and expense; to avoid the necessity for the bringing of witnesses to Court - thus avoiding disruption in the daily lives of those involved. Pleas made at the earliest possible moment deserve greater encouragement."

11. The Court there accepted, while the Attorney General has complete discretion as to what Court he brings a charge in - and if a charge is brought in a Court which has a limited sentencing jurisdiction whereas it might more appropriately have been brought in one which has not this may provide an advantage to an applicant but not one solicited by him - that "the legitimate expectation of some recognition of a plea" should not be denied an accused.

12. The Court in Kwok Chi Kwan indicated that it had consulted with the Chief Justice and the Vice Presidents before setting out sentencing policy and expressed the view that some recognition should normally be given to pleas of guilty even where the trial judge arrives at an appropriate sentence outside the limits of his jurisdiction.

13. In this instance case we do not think the judge arrived at an entirely inappropriate starting point but the net result of the 7 years' imprisonment is that there is no real recognition of the applicant's plea. We therefore give leave, treat the hearing of the application as the hearing of the appeal, allow the appeal, set aside the sentence of 7 years on the first charge and substitute for it a period of 6 years' imprisonment.

Representation:

Simon Westbrook, Esq. (Paul Kwong & Co.) for Applicant

D.G. Saw, Esq. for Crown/Respondent