HKSAR v. Chan Tin Yu

HCMA000789/2002

HCMA 789/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 789 OF 2002

(ON APPEAL FROM NKCC 3057/2002)

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Coram: Deputy High Court Judge Wong in Court

Date of Hearing: 31 October 2002

Date of Judgment: 31 October 2002

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J U D G M E N T

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1.The appellant Chan Tin Yu was convicted after trial before The Magistrate of one charge of trafficking in dangerous drugs. The amount of the dangerous drugs was 2.25 grames consisting of diazepam methamphetamine. He was sentenced to 4 months imprisonment. He appeals against both conviction and sentence and is represented by Mr McGowan.

2.The facts are very simple, a party of five officers went to the Japan Karaoke Night Club in Mong Kok to carry out an anti-drug trafficking operation. One of the officers was approached by the appellant who offered to sell him drugs. The officer agreed and handed over the two one hundred marked banknotes to the appellant who handed over the drugs to the officer. The other officers arrived and the first officer then identified the appellant as the seller of the drugs. He was arrested and taken away. Subsequently, the marked notes were found in the appellant's wallet. The appellant elected not to give evidence and did not call any witness. On the basis of the officers' evidence, the Magistrate convicted the appellant of the charge that he faced.

3.On behalf of the appellant, three grounds of the appeal were argued:

(1) the conduct of the arrest in support of the investigation by the Police was inherently suspicious and amateurish thereby rendering the conviction unsafe;

(2) there were too many discrepancies in the evidence; and

(3) the Magistrate did not state enough to decide these discrepancies before finding the prosecution witnesses to be credible.

4.I do not find there is any substance in any of the grounds argued by counsel. The Magistrate had considered all the evidence. He was aware of the discrepancies in the evidence and having considered them came to the conclusion that they were not discrepancies of such a nature that would affect the credibility of the officers.

5.In the circumstances, the appeal against conviction is dismissed. Regarding the sentence, Mr Madigan for the Government of the Hong Kong Special Administrative Region, fairly considered that the sentence of 12 months was manifestly excessive. I also have the advantage of reading the decision of Gall J in the case of R v Tang Kwai Choi which was delivered on 22 March 2000. In that case, the amount of drugs involved was very much larger than the present one. Gall J said that the sentence on the particular charge should be one of five months imprisonment.

6.Having taken into account of this decision and counsel's arguments, I am of the opinion that the sentence of 6 months would be appropriate and accordingly the appeal against sentence is allowed and the sentence is reduced from 12 months to 6 months.

Representation:

Mr P K Madigan, SGC, for HKSAR

Mr James McGowan, instructed by Messrs Quan & Co., for the Defendant