The Queen v. Choi Fung Ling

CACC000305/1986

BETWEEN

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Coram: Li, V.-P., Yang, J.A. & Bewley, J.

Date of hearing: 12th September, 1986.

Date of delivery of. judgment: 12th September, 1986.

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JUDGMENT

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Yang, J.A.:

1. This is the applicant's application for leave to appeal against her sentence, she having abandoned her application as regards conviction.

2. The facts of the case are within a very narrow compass. They are simply that the police, on entry into an apartment, found large quantities of drugs and also paraphernalia connected with trafficking of drugs. There were three counts, all for possession of dangerous drugs for the purpose of unlawful trafficking. On the first and second counts she was sentenced to 8 years' imprisonment and on the third count, she was sentenced to 9 months, sentences to run concurrently.

3. The co-accused was her husband. He pleaded guilty to the same three counts. On Counts 1 and 2 he was sentenced to 7 years and on Count 3 9 months, again sentences to run concurrently. The judge, in passing sentence, commented that he was prepared to give the husband a discount of 2 years for his plea of guilty, which meant that the starting point for the judge was 9 years. From these 9 years the judge deducted 1 year for the wife's personal circumstances, hence the 8 years for Counts 1 and 3.

4. Mr. Tee, acting for the applicant, argued this morning that the judge failed to take into consideration the different degrees of culpability between this applicant and her husband. Mr. Polson, who was counsel for the applicant in the court below, said in mitigation that she was but a follower and not the prime mover or instigator of these offences. The judge, in stating his reasons for the sentence, did not refer to the possibility of any difference in the degree of culpability. The applicant in her evidence described her role as a follower of her husband. We are, of course, unable to say whether the jury accepted that evidence.

5. Given the possibility that she, as a wife, did in fact play a secondary role to her husband, a matter which did not seem to have received sufficient consideration in the court below, we are prepared to consider the case on the basis that her culpability was somewhat less than her husband's.

6. For these reasons, we allow the application, treat the application as an appeal and allow the appeal by reducing the sentence on Counts 1 and 2 from 8 to 7 years. So the result is : on Count 1 the sentence is 7 years, Count 2, 7 years and Count 3, 9 months concurrent.

Representation:

J. Tse (David K.W. Tsang & Co.) for the Applicant

McCoy for D.P.P./Respondent