HKSAR v. Yu Sing Chung

CACC000287/1997

IN THE COURT OF APPEAL

1997, No. 287
(Criminal)

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Coram: Hon Nazareth, V.-P., Mayo, J.A. and Cheung, J.
       in Court

Date of hearing: 18 September 1997

Date of judgment: 18 September 1997

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. On 20th November 1995 the applicant, Yu Sing-chung, pleaded guilty before Yeung J to one charge of trafficking in dangerous drugs. The charge was that on 30th May 1995, at the ground floor of Cheung Yuen House, Chuk Yuen North Estate, Kowloon, he unlawfully trafficked in a dangerous drug, namely 415.03 grammes of a mixture containing 62.45 grammes of heroin hydrocholoride. He was convicted on his own plea and sentenced to imprisonment for 5 years.

2. About a year and a half later, on 21st May 1997 he put in a home-made notice of application seeking an extension of time within which to give notice and leave to appeal out of time against sentence.

3. Before us today, he is represented by Mr Whitehouse who explains the delay by the fact that the applicant did not fully appreciate the position and did not know what was in certain documents, not knowing English. With that we turn to the grounds upon which Mr Whitehouse relies in support of the appeal against sentence.

4. The judge in sentencing the applicant took a starting point of 9 years. That starting point, Mr Whitehouse says, is a little too high. He makes his submission by reference to R v Lau Tak-ming [1990]2 HKLR 370. The relevant band of the tariff there is 50-200 grammes which attract a tariff guideline of 8-12 years. It is upon that basis that Mr Whitehouse suggests that the starting point of 9 years is a little too high.

5. The starting point was expressed by the judge in these terms:

"A starting point of about 9 years is appropriate."

It is clear there that he did not posit his starting point on precisely 9 years. However, Mr Whitehouse's main point is this: that the applicant afforded some assistance which the judge was apprised of, it having been brought to his notice. But that since sentencing, there have been other developments of which he could not have been aware. These have been placed before us. We have had careful regard to them. We think that they bring the matter largely within the scope of the considerations mentioned in the case of Michael Shaun King 7 CrAppR(S) at 227.

6. Having regard to those considerations and to the developments subsequent to sentencing brought to our attention, we think that the discount accorded to the applicant, which was 4 years, does not reflect the matters referred to. We think that an appropriate discount should be 5 years, reducing the sentence from 5 years to 4 years. We accordingly extend the time within which to appeal, treat the hearing of the application as that of the appeal, allow the appeal and order accordingly.

7. The sentence is thus reduced to one of 4 years.

Representation:

Mr Robert S.K. Lee (SADPP(Atg)) (DPP) for the Respondent

Mr Whitehouse (DLA) for the Applicant