The Queen v. Chan Ka Wai

CACC000530/1988

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Coram: Hon. Yang, C.J., Cons, V.-P. and Hunter, J.A.

Date of hearing: 9 May 1989

Date of delivery of judgment: 9 May 1989

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J U D G M E N T

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Cons, V.-P. Delivered the judgment of the Court:

1. The Applicant in these proceedings, one Chan Ka Wai, pleaded guilty before O'Connor J. to an indictment charging that on the 29th day of April 1988 he had in his possession a dangerous drug namely 346.60 grammes of a mixture containing 312.50 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein.

2. The dangerous drug in question had been found in polythene bags beneath a bed in a room to which the Applicant had the, key. Together with the, drugs were some 212 further but empty polythene bags.

3. The Applicant is aged 31. He is single and is apparently a casual transport worker. He has 10 previous convictions of which only 2 relate to dangerous drugs and those are of a minor nature.

4. The factor in the case which the judge below thought important was the high purity of the mixture as revealed by the figures quoted in the indictment i.e. it was 90.16% salts of esters of morphine, or in other words, No. 4 heroin. Evidence was given before the judge which the Applicant was not prepared to challenge, that the purity of No. 3 heroin as sold on the street was 6.32% salts of esters of morphine. Thus, in a comparison between the two, the No. 4 was 14,26 times more pure.

5. For the purpose of sentencing, and for reference to the Chan Chi Ming guidelines, the judge treated the mixture to which the Applicant had pleaded guilty as though it had been converted into a No. 3 mixture, which would then amount to just below 5 kilogrammmes. That approach has since been confirmed by the recent decision of this Court, R. v. Cheng Yeung Criminal Appeal No. 460 of 1988, as being correct. Making allowance for the plea of guilty, the only substantial mitigation put forward below, the judge passed a sentence of 11 years. The Applicant now asks for leave to appeal against the sentence.

6. The Notice of Appeals drafted, which, we should say, was prior to the decision in Cheng Yeung, attacked the judge's finding as being inconsistent with the second general consideration of Chan Chi Ming that -

"It is the quantity of the mixture which should be looked at rather than its content."

That line being no longer open to him counsel for the Applicant has today adopted a different approach. His argument rests upon two premises: 1. that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence; and 2. that in April 1988, there was an established pattern of sentencing which treated No. 4 as, being in no way different from No. 3 heroin, which pattern the judge violated. The second premise could be put in another way, as in fact it was this morning, that Cheng Yeun introduced by its conversion principle a new and increased tariff of sentences for No. 4 heroin.

7. The first premise we take to be settled law. As to the second we had doubts when it was first suggested and stood the appeal down to enable counsel to research authorities in support. His position now is that he wishes to go no further than he did earlier, and we need only add that authority in the form of R. v. Lee Ho Wai Cr.App. 379 of 1988, a decision of this Court given on the same day as Cheng Yeung but for which reasons were handed down subsequently, and which in the meantime has come to our notice establishes the opposite. The alternative approach of counsel therefore fails.

8. It is then said that generally speaking the sentence was excessive for the amount involved. With every respect we cannot agree. In our view the sentence was appropriate to the amount and in line with other sentences passed in similar circumstances.

9. For these reasons the application is refused.

Representation:

Mr. Nigel de Boinville (D.L.A.) assigned for the Applicant

Mr. G.J. Lugar-Mawson Crown Prosecutor for the Respondent