The Queen v. Chan Chi-keung

CACC000229/1985

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A. & Hunter, J.

Date of Hearing: 14th November 1985

Date of Judgment: 14th November 1985

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JUDGMENT

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Kempster, J.A.:

1. On 16th May of this year CHAN Chi-keung was sentenced by His Honour Judge Souyave to six years imprisonment for the offence of possessing dangerous drugs for the purpose of unlawful trafficking. He seeks leave to appeal to this Court from that sentence. It was earlier this morning suggested that an application might be made for an adjournment so that Chan could be represented by leading counsel but, on consideration, this further application was not persisted in and we have had the advantage of argument and submission ably advanced to us by Mr. Pedruco on Chan's behalf. And, if we may say so, we do not think in the circumstances that Chan's election to go on was ill-advised.

2. The facts of the case were relatively simple. On 17th January of this year customs officers were keeping observation at premises on the Shun Lee Estate where, at about a quarter past five in the afternoon, the applicant was intercepted by them and searched. Keys were found in his clothing and he was taken back to room 512 which the keys fitted. As the party reached the entrance the applicant shouted out "Why arrest me. I haven't done anything wrong." and, as was observed by other officers, shortly after that shout the applicant's wife cast from the window of the room a travelling-bag which was recovered and in due course found to contain 5,783 grammes of raw opium.

3. The learned judge took a merciful course in relation to the wife; sentencing her to two years imprisonment suspended for three years. He took into account the facts that she had a child of tender years to look after and that she might well have been under the domination, without attaching too pejorative a meaning to that word, of the applicant.

4. As regards the applicant's sentence of six years we have been referred to a number of earlier decisions of this Court which display no very settled pattern and may even show a degree of misunderstanding of the basis of earlier decisions. Today we do not presume to give general guidelines. We will consider this application on what we regard as its merits.

5. There was evidence that the quantity of opium in question was worth, in its raw form, some $60,000. The applicant was 36 years old. He could not boast a very healthy criminal record but nothing related to possession of or trafficking in drugs and what it really demonstrated was a great addiction to gambling in places that were not licensed gambling establish-ments. It may be, for all we know, that this propensity led him into the possession of opium. Be that as may we think that the sentence of six years was too heavy for a man who had not been in trouble in the context of drugs before. Accordingly it is the order of this Court that the application for leave to appeal against sentence be allowed; that we treat this as the hearing of the appeal and that the applicant's sentence be reduced from six to four years.

Representation:

Mr. Luiz Da Silva Pedruco (Ronald Ho & Co.) for applicant

Mr. Michael Bulleid for D.P.P.