R. v. Chan Hei Kam
Read the full judgment text of CACC 498/1994 on BabelCite. This Court of Appeal judgment was delivered on 22 February 1995 before Yang CJ, Penlington JA, Liu JA.
Criminal law – trafficking in dangerous drug – heroin – five plastic packets totalling 93.01 grammes of mixture containing 31.74 grammes of salts of esters of morphine – applicant accosted in early hours of morning – varying weights in packets – whether small and varying quantities indicative of self-consumption rather than trafficking – sufficiency of evidence for conviction – sentencing – assistance to police discount – totality principle – concurrent sentences. Whether trial judge erred in convicting applicant of trafficking by failing to give due weight to the small and varying quantities of drugs found in the five packets – held: no, the irregular quantities were not determinative either way and the trial judge's reasoning could not be faulted given the applicant's unimpressive, vague and evasive evidence. Whether the sentence was manifestly excessive – held: no, the computation set out in the trial judge's reasons for sentence was not wrong in principle and the totality was not manifestly excessive. Application for leave to appeal against conviction dismissed; application for leave to appeal against sentence also dismissed. Sentencing math: starting point after discount for assistance to police was 3.5 years, further reduced by 6 months to 3 years to run concurrently with the existing 3.5 year sentence, resulting in overall totality of 6.5 years.
Legal issues: Sufficiency of evidence for trafficking conviction given varying drug quantities · Whether sentence was manifestly excessive
Outcome: Application for leave to appeal against conviction dismissed; application for leave to appeal against sentence dismissed.
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CACC000498/1994 IN THE COURT OF APPEAL 1994, No. 498 ____________
____________ Coram : Hon. Yang, C.J., Penlington and Liu, JJ.A. Date of hearing : 22 February 1995 Date of judgment : 22 February 1995 ___________________ J U D G M E N T ___________________ Liu, J.A. (giving the judgment of the Court): 1. The applicant was charged with trafficking in a dangerous drug. It was a mixture of 93.01 grammes containing 31.74 grammes of salts of esters of morphine. 2. In the early hours of 27 January 1994, the applicant was accosted by the police when he was walking in Shansai Street with his wife. Five plastic packets were found on him, containing various weights of mixture of heroin, namely, 10.58 grammes, 6.77 grammes, 10.22 grammes, 3.51 grammes and 0.66 grammes respectively. 3. He appeared before the District Court and after a trial in which he gave evidence, he was convicted. He was sentenced to three years' imprisonment which was ordered to run concurrently with a prison sentence of three years and six months he was serving. 4. He is represented by Mr Oderberg today on his application for leave to appeal against conviction but is unrepresented in his application for leave to appeal against sentence. 5. On behalf of the applicant, counsel submits that the judge failed to give due weight to the small and varying quantities in the five packets of drugs seized. It is submitted that these quantities were indicative of self-consumption as claimed by the applicant rather than trafficking as alleged by the Crown. 6. The irregular quantities, though in themselves not substantial, can really not be determinative either way, neither as regards self-consumption nor trafficking. The trial judge had taken into consideration the five separate packets found on the person of the applicant in the early hours of the morning, the "widely varying weights" of the drugs in the packets, the over 90 grammes mixture and the applicant's unpersuasive performance on the witness stand, which evoked no doubt in the Crown's case. The judge came to the conclusion that the evidence given by the applicant was vague, particularly with reference to the storage of syringes claimed to have been kept outside the flat of the applicant but its location was not identified in his evidence. He was found by the trial judge to be most unimpressive, hesitant, evasive and vague. 7. Taking all these factors into consideration, the trial judge was satisfied that there was evidence to convict the applicant as charged. The reasoning of the trial judge cannot be faulted. The application for leave to appeal against conviction is therefore dismissed. 8. Turning to the applicant's own application for leave to appeal against sentence, he added nothing further to his home-made grounds. In the reasons so provided, he claims that his wife had just given birth to a child. She is said to be unable to support the family alone. The applicant expresses the hope that he would be discharged at an earlier time to take care of his wife and his new born daughter. The trial judge noted the proper starting point for the quantities of drugs found on the applicant and gave him a substantial discount for the information and assistance that he had given to the police. He arrived at three and a half years. Attention was thereupon turned to the totality of the sentences when the judge was considering whether to order the sentence to run consecutively with the sentence then being served by the applicant. There was really little justification for reducing the totality from seven years to six and a half years. But giving the applicant the maximum benefit of doubt and invoking leniency, the judge was prepared to reduce the term of three and a half years by six months to three years. He ordered the same to run consecutively with the applicant's three and a half years' current term. 9. We are satisfied that the computation set out in the reasons for sentence of the trial judge is not wrong in principle and we do not find the totality in his computation manifestly excessive. Consequently, the application of the applicant for leave to against sentence is also dismissed.
Representation: Appellant in person/represented by Mr Oderberg Mr D.G. Saw (SACP) for the respondent |