The Queen v. Chan Pun Wai
Read the full judgment text of CACC 41/1989 on BabelCite. This Court of Appeal judgment was delivered on 19 May 1989 before Silke VP, Kempster JA, Penlington JA.
Criminal law – dangerous drugs – trafficking – heroin – possession with intent to traffic – appeal against conviction – credibility of accused – appellate restraint – appeal against sentence – sentencing guidelines – Hong Kong – applicant convicted in the District Court of possessing nearly 663 grammes of a mixture containing heroin for the purpose of unlawful trafficking at premises in Causeway Bay where he lived with his parents – applicant a drug addict – Crown evidence largely undisputed – applicant alleged drugs acquired cheaply from one Ho Chai who was being pursued by the narcotics bureau and that he was stocking up for personal use – whether trial judge's adverse credibility finding should be disturbed on appeal – Court of Appeal will not retry cases on paper in order to fault credibility conclusions of a judge who has seen and heard the witnesses – whether 7 years' imprisonment was manifestly excessive – sentence well within established Court of Appeal guidelines for the quantity involved – leave to appeal against conviction and sentence refused – applications dismissed – three months between filing of application and judgment not to count towards sentence.
Legal issues: Whether trial judge's adverse credibility finding against applicant should be disturbed on appeal · Whether 7 years' imprisonment for trafficking approximately 663 grammes of heroin mixture was manifestly excessive
Outcome: Both applications for leave to appeal against conviction and against sentence dismissed; conviction and 7-year sentence upheld.
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CACC000041/1989
BETWEEN
________________ Coram: Hon. Silke, V.-P., Kempster & Penlington, JJ.A. Date of hearing: 19 May 1989 Date of judgment: 19 May 1989 _______________ J U D G M E N T _______________ Kempster, J.A. : 1. On 4 January 1989 Chan Pun Wai was convicted by H H Judge Caird in the District Court of possessing nearly 663 grammes of a mixture containing heroin for the purpose of unlawful trafficking. On the same occasion Chan was sentenced to 7 years' imprisonment. He now seeks leave to appeal against that conviction and if unsuccessful, for leave to appeal against his sentence. 2. The evidence adduced by the Crown was not and is not disputed. On 10 October 1988 police officers raided Premises in Causeway Bay where the applicant and his parents lived. There they found not only the quantity of drugs just mentioned but paraphernalia appropriate for packaging and storing them and items used in assisting in the actual consumption of drugs. As far as the latter are concerned we accept and appreciate that the applicant is himself a drug addict. 3. At trial the defence advanced by the applicant, who gave evidence, was that he had had a stroke of good fortune in being able to acquire this large quantity of drugs, let alone the packaging paraphernalia, because the narcotics bureau was at the heels of one Ho Chai who, wanting to disburden himself of incriminating material, had been prepared to sell to the applicant at an advantageous price. So, albeit there may well have been one or more statutory presumptions upon which the judge could have relied, any such presumption was rebutted by this evidence which showed that the applicant was only laying-in a large stock of drugs from which he would draw from time to time to satisfy his personal needs. The judge disbelieved him. 4. The grounds of appeal advanced by the applicant in writing and orally really involve a criticism of the judge's conclusion that what he had said at trial was not the truth. The approach of this Court to such a plea has been stated only too often. We are not in a position to retry cases on paper so as to be able to say that a conclusion as to the credibility of witnesses reached by a judge who has seen and heard them can be faulted. 5. The applicant went on to offer certain criticisms of the modus operandi of those concerned to enforce the legislation against the use of narcotics. Doubtless they will carefully be considered in the right quarter but they did nothing to advance his application. 6. Turning to sentence, the applicant had nothing to say. Taking account of the quantity involved 7 years' imprisonment was well within guidelines which have been provided by this Court. No criticism can be levelled at the sentence.'' 7. So little merit is there in either of these applications, both of which we dismiss, that we direct that three months of the period between the filing of the application and to-day will not count towards sentence. Representation: Chan Pun Wai, Applicant, in person A A Bruce for Crown/Respondent |