Case Document

CACC000394/1991

IN THE COURT OF APPEAL	1991, No. 394
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	CHAN MUNG LUNG

----------

Coram: Hon. Silke, V.P., Power S Penlington, JJ.A.

Date of hearing: 21 February 1992

Date of delivery of judgment: 24 April 1992

---------------------

J U D G M E N T

---------------------

Penlington, J.A. (delivering the judgment of the court):

1. This is an application for leave to appeal against a sentence of four-and-a-half years' imprisonment imposed by Judge Surman in the District Court on a charge of trafficking in dangerous drugs.

2. The applicant pleaded guilty to the offence and agreed to a summary of facts tended by the Crown. These showed that on the 15th June 1991 the applicant arrived at Lo Wu from the Peoples Republic of China ("China") and on going through the green channel of the Customs and Excise Department at 2030 hrs. he was searched and found to be in possession of a cigarette packet in which was 29.3 grammes of a mixture containing 22.79 grammes of salts of esters of morphine - no. 4 heroin.

3. In mitigation the following facts were put forward on behalf of the applicant, as recorded by the trial judge:

" Age : 47

Widower (Wife died 19 years ago).

Lives in Hong Kong with 19-year-old son.

Other sons in China.

Used to have a business shop - but forced to sell it earlier this year because of financial difficulties.

In financial difficulties - under pressure. Started taking drugs - but not addicted. He found a supplier in China for his drugs. He bought the drugs at China for (he says for his own consumption) - but he bought them from China and so has pleaded guilty to the offence of trafficking.

His first drug conviction."

(emphasis supplied)

4. The trial judge in his reasons for sentence said that he saw no reason to deviate from the tariff set out in R. v. Lau Tak Ming [1991] 2 HKLR 370. He gave credit to the applicant for his plea of guilty and that he had no previous convictions for drug offences. Using a starting point of six years he imposed a sentence of four-and-a-half years' imprisonment.

5. The trial judge did not make a finding as to whether the applicant was bringing the drugs into Hong Kong from China for his own use but the definition of trafficking in dangerous drugs includes importing into Hong Kong. Mr. McCoy, who appears here on behalf of the applicant but did not represent him in the court below, submits that, while clearly the applicant was obliged to plead guilty to the charge of trafficking because he imported the drugs from China into Hong Kong, if in fact he proposed to only use them in Hong Kong himself and not to sell them, or part of them, to other people, he would be entitled to have that considered in mitigation. He submitted that the tariff sentences for trafficking were on the basis of a person who was dealing in the drugs, not one who had them for his own consumption, albeit a large quantity well above that which could raise an inference of trafficking.

6. It was Mr. McCoy's submission that there was here an important question of fact relevant to the proper sentence which the court should have passed and that if there was no agreement as to that there should have been an enquiry held, as formulated in R. v. Newton [1983] 77 Cr. App. R. 13. That was not done and it is Mr. McCoy's further submission that there was no power in this court to remit the matter back to the judge for a Newton enquiry to be held. The court should therefore consider the sentence passed on the basis of the facts most favourable to the applicant, i.e. that while he was importing the drugs into Hong Kong, they were for his own use and he did not intend to deal with them.

7. The matter was adjourned to see if there was any relevant authority and Mr. McCoy very helpfully then referred us to R. v. Kan Wah Cheung, Cr. App. No. 83 of 1990, where a matter which had been heard in the Supreme Court was referred back to the trial judge, with the consent of both the Crown and the defence, for a finding of fact on an important point relevant to sentence. The same course was followed in R. v. Lee Chung Hung [1981] HKLR 613 but there the appellant was not represented and the question of the court's power to remit not considered. We were also referred to R. v. Costley (1989) 11 Cr. App. R. (S.) 357. There the sentencing judge was faced with a conflict of evidence as to whether there was a provocation leading to an attack. If there had been such provocation the sentence passed was too severe whereas if there had not been any it was too lenient. The trial judge had tried to steer a middle course between those two options instead of having a Newton enquiry. The Court of Appeal at 361, per Otton, J., said:

" In those circumstances, we have come to the conclusion that this Court should abide by the reasoning and principle of the case of Newton, and base the sentence on the version advanced by the appellant."

8. We have not been referred to any specific authority which enables this court to remit a matter back to a lower court for a finding of fact relevant to sentence. It is Mr. McCoy's submission that we have no such power and that although it was done in Kan Wah Cheung that was by consent. Even then he suggests that the court did not have the power to so remit.

9. While this court does have an inherent power to regulate its own procedure, even in the absence of specific statutory authority, we do not consider that extends to the remission of a matter to the District Court for a finding of fact. We are of the view that such a power would be desirable but it would have to be specifically conferred by legislation. There seems to have been no suggestion made by either side in Costley that there could be any question of the matter being remitted back, presumably because it was considered that the lower court having made its finding and passed sentence, was functus.

10. The question of whether or not the applicant was bringing the drugs into Hong Kong for his own consumption or for re-sale was highly relevant to the question of the proper sentence to be passed, and if they were only for his own use, was a strong mitigating factor. On the authority of Costley we consider that, in the absence of a finding on this point, a sentence should be passed which reflects the factual version most favourable to the applicant. The application is therefore allowed and the sentence reduced to one of one-and-a-half years' imprisonment.

11. We would only add that we consider that this court should be given authority to remit a case to a lower court for the determination of a fact relevant to sentence.