R. v. Cheung Sum Man

CACC000514/1991

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Coram: Hon. Yang, CJ, Silke, V-P & Bokhary, J

Date of Hearing: 17 September 1992

Date of Judgment: 17 September 1992

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the judgment of the Court.

2. Cheung Sum-man (Al) pleaded guilty before Mr. Justice Leong to one count of trafficking in a dangerous drug, and was, upon the conviction after trial of his co-accused Wong Kwai-wing (A2) upon the same offence, sentenced to imprisonment for 15 years. He now seeks leave to appeal against sentence.

3. The facts against Al are that in the morning of 24th August 1990, he went to the Dor Cheuk Restaurant to meet one Tse Man-sum as arranged. Also present at the Restaurant were A2 and another man. An arrangement was made for Tse to give one piece of No. 4 heroin for which Al would pay Tse $50,000 the next day and the balance of another $50,000 one week later. A2 then left the Restaurant after having been told by Tse to collect the goods. A2 walked to Nga Tsin Long Road near Nga Tsin Wai Road where he met Al. A2 handed to Al the paper bag indicating that the goods were inside. A2 then told Al to leave by minibus. Al did as he was told and boarded a minibus for Shamshuipo. He alighted at the junction of Wong Chuk Street and Yu Chow Street, carrying the paper bag with him.

4. At Wong Chuk Street, Al was intercepted by two police offices. Upon finding the substance in the paper bag, he was arrested and cautioned and taken to the police station. The substance found in the paper bag was analysed and found to be 699.92 grammes of a mixture containing 607.49 grammes of salts of esters of morphine.

5. A1 had three previous convictions: one in 1974 for an unrelated offence, one in 1979 respecting three offences, one of which was possession of dangerous drug for which he was bound over, and lastly, in 1985, he was sentenced to five years' imprisonment for doing acts preparatory or for the purpose of manufacturing of.dangerous drug.

6. In passing sentence the learned judge, after taking into account a very full plea in mitigation, treated trafficking in a dangerous drug on the same basis as possession for the purpose of unlawful trafficking in a dangerous drug. Noting Al's previous convictions, the judge took into account Al's plea of guilty. He also took into consideration the fact that A1 had given evidence for the prosecution against A2 and had given assistance to the police. The learned judge however observed that when an accused was caught red-handed, a plea of guilty would not result in a reduction of sentence greater than that given to one who had not been caught red-handed. Taking into account all the circumstances and adopting 20 years as a starting point, the judge gave a discount of 25% and arrived at the sentence of 15 years.

7. In seeking to appeal against the sentence, counsel for A1 argues: (1) that the discount given was insufficient, (2) that the judge had failed to take sufficient account of Al's plea of guilty his assistance to the police, his offer to give evidence ofr the prosecution at D2's trial and his actually giving evidence at D2's trial and (3) that the sentence is manifestly excessive.

8. We have admitted into evidence before us a letter from Mr. Jenkyn-Jones, the prosecuting counsel, addressed to Al's legal representative. The letter is dated 3rd August 1992, i.e. some ten months after conviction, and it says that at the trial of A2, A1 gave evidence for the Crown but in the final analysis, his evidence was not helpful to prosecution case. It goes on that this was not in fact his fault, nor was it deliberate or as a result of malice. A1 did come up to proof and was not hostile, reluctant, or compromising in his evidence.

9. Counsel for A1 also seeks leave to produce before us two witness statements made by A1 to the police, ond dated 19^th July 1991 and the other 26th July 1991.

10. Having heard counsel and admitted the letter written by Mr. Jenkyn-Jones, we are of the view that we should not admit the two statements in question, I seems clear to us that the statements which counsel for A1 seeks to produce before us simply indicate that A1's evidence at A1's trial is not inconsistent with the statements he had given to the police and both were available at A1's trial.

11. We have considered the facts of the case and in particular the assistance this applicant had given to the authorities. We are of the view that in the light of this assistance, a more generous discount could have been given by the trial judge to the applicant. In all the circumstances, we are of the view that a proper sentence in this case is one of 13 years.

12. We allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. We reduce the sentence from one of 15 years to 13 years.

Representation:

Mr. Casewell for Crown/respondent

Mr. R. Murray (DLA) for A1