The Queen v. Leung Kwong Chuen

CACC000130/1986

BETWEEN

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Coram: Cons, V.-P., Kempster, J.A. & Hopkinson, J.

Dates of hearing: 11th and 18th July, 1986

Date of delivery of judgment: 18th July, 1986.

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application for leave to appeal against a sentence of six years passed by Judge Ryan sitting as a Deputy Judge of the High Court on one count of possession of dangerous drugs for trafficking. The drugs in question were 745 grammes of heroin No. 3, 742 grammes of heroin No. 4 together with small amounts of prepared opium, opium water and opium dross.

2. Most of the facts were agreed at the trial. Thus it was agreed that the premises were entered by the police. They comprised a teng, a bedroom and a kitchen cum toilet. The Defendant was the only person in occupation, at the time. On a chair in the teng there were ten bags of heroin. In the bedroom there was more heroin on the bed, in the wardrobe and under a desk. On the desk there was an open packet indicating perhaps that the Defendant himself was the user. That is consistent with the story now put forward, although not in the court below, that the Applicant takes drugs from time to time to ease recurrent headaches. The Defendant had the keys to the premises and to the desk which when unlocked was found to contain plastic bags.

3. These were the facts that were agreed to have taken place in 1980. The trial however was only this year because the Applicant had absconded while he was on bail pending trial. He gave evidence to the jury that his presence in the premises was innocent in that he was waiting for a prospective tenant whom his wife had invited to look over the premises. The jury did not believe that story and convicted. Originally he filed an application for leave to appeal against that conviction, but that application is now abandoned.

4. The sentence imposed by the Judge was well below that suggested by the guidelines in Chan Chi Ming⁽¹⁾. Mr. Westbrook, who appears for the Applicant concedes that it is indeed a lenient sentence, but pleads ad misericordiam for something even lighter. He relies on the Defendant's age, now 76, upon his poor health, although that is not well supported by the medical report from a doctor attached to the Correctional Services Department, and he suggests that the Applicant is not a professional dealer. That he says is supported by the Applicant's clear record. We think possibly he rather means habitual dealer, but even that does not necessarily follow from a clear record.

5. He has referred us to two cases where the Court adopted an especially lenient course. They are Choong Eng Yee ⁽²⁾ and Koo Tai⁽³⁾. The present circumstances fall significantly short of what was shown in either of those. All that can really be accepted in his favour in this respect is his age, and we are asked to note that according to the average life expectancy in Hong Kong he can only look, forward to another 8 years. It would be sad, it is suggested, if most of that time was spent in prison.

6. Since his case came first before us last week, an officer from the Social Welfare Department had very kindly furnished us with a full and helpful report on the Defendant. However the contents take matters no further from his point of view. We are left with his age and his clear record. Naturally we are sympathetic with old people who are foolish enough to become or remain involved in the drug trade. But there are limits that have to be observed. In our view the Judge below extended leniency as far as it could possibly be taken, and we see no reason to interfere with the sentence.

(1)    [1979] H.K.L.R. 491

(2)    Cr. App. 194 of 1985

(3)    [1978] H.K.L.R. 383

Representation:

Simmon Westbrook (M/s K.C. Chan & Co.) for the Applicant

A.A. Bruce, Crown Counsel for Respondent