The Queen v. Cheung Yau-kuen

CACC000044/1988

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BETWEEN

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Coram: Kempster J.A., Power J.A. & Barnes J.

Date of Hearing: 1st July 1988

Date of Delivery of Judgment: 1 July 1988

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J U D G M E N T

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1. This is an application for leave to appeal against sentence. The applicant was convicted after trial by jury, presided over by Hopkinson J., of the offence of possession of a dangerous drug for the purpose of unlawful trafficking. The dangerous drug was a mixture weighing 1087.71 grammes containing 101.58 grammes of salts of esters of morphine.

2. The applicant was intercepted in the street by a Customs Officer while he was in the act of carrying the mixture in a bag.

3. He was aged 26 at the time of his conviction and had a criminal record. In December 1979, he was convicted on a charge of robbery, five charges of unlawful possession and six charges of giving false information to a pawnbroker. He was sentenced on that occasion to detention in a detention centre. In January 1983, he was convicted on a charge of robbery and on that occasion, was sentenced to imprisonment for six years.

4. The quantity of the mixture which the applicant had in his possession was just within the "very substantial" range as that range is defined in R.v. CHAN Chi-ming. The guidelines set out in CHAN Chi-ming suggest a range of imprisonment from 8 to 12 years for possession of a quantity over a thousand grammes. In this case the quantity which the applicant had in his possession as only slightly in excess of a thousand grammes. We think that following the guidelines of CHAN Chi-ming, the appropriate sentence would therefore have been imprisonment for 6 years. The case was one of a courier caught in possession of the mixture and there were no circumstances suggesting that the sentence should be higher than the term of 8 years suggested in CHAN Chi-ming as the lower end of the scale for quantities above a thousand grammes.

5. I should have mentioned that, in the lower court, nothing was said, indeed nothing could be expected to have been said, by way of mitigation. However, we cannot see in the circumstances any justification for a period of imprisonment of the order of 10 years. Accordingly, we grant his application and allow his appeal against sentence to this extent that we quash the original period and substitute therefore a sentence of imprisonment for 8 years.

Representation:

Applicant, CHEUNG Yau-kuen, in person.

I.G. Cross Counsel for Respondent/Crown.