The Queen v. Hung Mau Sing

CACC000476/1989

BETWEEN

---------

Coram: Hon. Sir Derek Cons, Acting C.J., Clough, J.A. & Kaplan, J.

Date of hearing: 1 August 1990

Date of delivery of judgment: 1 August 1990

----------------

JUDGMENT

-----------------

Sir Derek Cons, Acting C.J., delivered the judgment of the Court:

1. The Applicant, Mr. HUNG Mau Sing, was convicted by a jury before Barnes, J. of the offence of possession of dangerous drugs for the purpose of trafficking. He was sentenced to nine years' imprisonment. That was on the 1st September of last year.

2. His defence at the trial was that he was taking the blame for the real culprit who had been a very good friend to him in the past. That was rejected by the jury. He asked leave to appeal against his conviction upon the same basis. His application was dismissed by this Court on the 9th March this year.

3. He applied on. The 29th March, that is the same month, for leave to appeal against his sentence out of time. In support of the application he says that a law clerk advised him that his chances against conviction were so good that he need not to go against sentence.

4. In his written ground of appeal he suggests that newspaper reports indicate that people convicted for similar amounts have received lesser sentences of seven to eight years. He adds today the unfortunate circumstances in which his conduct has left his family. He has an aged father of 90 years and three children below the age of 6.

5. It is quite clear that an appeal against sentence would stand no chance of success. The newspaper reports to which Mr. Hung refers were either wrong or there were very special circumstances in those particular cases which are not present in this. The guideline of this Court for amounts over I kilogram of drug suggests a sentence of at least eight and up to possibly twelve years. Mr. Hung was in possession of 2.7 kilograms. Nine years cannot be wrong.

6. We appreciate his family circumstances. Most unusually in our experience his family have come to court today, we presume, to support him. His father is very clearly upset about what is happening and it may be that his wife, as a result of his conduct, is left in straitened circumstances. If that is so we ask Mr. Grenville Cross to put her in touch with the Social Welfare Department.

7. It is well established that family circumstances play virtually no part in mitigation of drug offences, partly because were it otherwise it would encourage persons in the drug trade to take advantage thereof and partly because the effect upon his family must be obvious to the man in question before he agrees to embark upon such conduct.

8. Thus even if we were to give leave the appeal would be a waste of time. But in our view we should not let it go that far. Mr. Hung was at the time clearly aware that he could appeal both against conviction and against sentence, and that one would have no effect upon the other. It is spelt out on the form which he signed. He may have received the advice as he told us. Nevertheless it was his decision not to proceed with an application regarding sentence. His application now to extend time for doing so is refused.

Representation:

I.G. Cross, Q.C., & Patrick Cheung, Crown Prosecutor for Respondent

Applicant in person