The Queen v. Chow Kwok Ping

IN THE COURT OF APPEAL

1986, No. 528
(Criminal)

BETWEEN

THE QUEEN

and

CHOW KWOK PING

_______________

Coram: Yang & Silke, JJ.A. & Barnes, J.

Date of Hearing: l3th January 1987

Date of Judgment: 13th January 1987

_______________

J U D G M ENT

_______________

Silke, J.A.:

1. The Applicant, Chow Kwok Ping, was convicted after trial of the offence of trafficking dangerous drugs, the quantity of which was 43.18 grammes of a mixture containing 4.37 grammes, of salts of esters of morphine. He was sentenced to a period of 6 years' imprisonment.

2. He originally sought leave to appeal against both his conviction and his sentence but he has today abandoned in face of the Court his application in respect of conviction. We are, therefore, concerned only with the sentence.

3. Briefly, the facts were that police were keeping observation on a courtyard which was behind-a restaurant in the Tong Tau Estate. A man in a yellow T-shirt was seen going in and out. A little later, the police descended upon a passageway near the courtyard and the Applicant was arrested as was another person who was jointly charged with him but who was acquitted. In his possession was found a large number of packets of dangerous drugs. He had a white polythene bag in his left hand and another two packets of dangerous drugs wrapped in newspapers in his right hand. In that polythene bag there were 11 packets wrapped in newspapers, 2 packets wrapped in a pink coloured covering, 1 packet in a transparent plastic bag and 7 transparent plastic bags in a yellow coloured paper all containing drugs.

4. Upon arrest, the Applicant asked for a chance and said he was merely assisting another man in the distribution of drugs.

5. In his defence at trial he suggested that he had gone there simply to buy drugs for his own consumption to the value of $150.

6. His cautioned statement, having been made the subject of a voir dire, was admitted in evidence and was relied upon by the trial judge in coming to his conclusion of guilt. That statement was a clear admission of direct trafficking.

7. In his Reasons for Sentence, and this passage has been criticized by Mr. Wong who appears in this Court on behalf of the Applicant, the trial judge said:

"Trafficking is an offence of the utmost gravity and following the guidelines laid down in the well known case of Chan Chi Ming and bearing in mind that this was not the first time this accused had committed such an offence, I sentenced him to six years' imprisonment."

8. The criticism was based on two grounds. One, that the guidelines of Chan Chi Ming[1] in relation to the quantities concerned here would suggest a sentence in the range of between 3 to 5 years: the "small", that is 30 to 150 grammes, guideline. The second ground was that Judge Blackwell, in making reference to the previous offence, was sentencing the Applicant on the basis of his previous record.

9. The Applicant has a long criminal history. It matters not whether there were 15 or 9 previous convictions they stretched back to 1967. There was but one drug conviction amongst them. In 1983 he was sentenced to a period of 2 years' imprisonment for trafficking in dangerous drugs.

10. Chan Chi Ming1 is not a case which directly applies to a person found in the actual act of trafficking. It refers to persons charged with possession of dangerous drugs for the purpose of unlawful trafficking. These courts have taken a more serious view of those persons found, as was the Applicant, actually trafficking in drugs.

11. The previous conviction is a factor which can be taken into consideration. It would, of course, be wrong if the sentence were to be unusually high simply because of a previous record.

12. The sentencing judge was entitled to bear in mind that this the second time that the Applicant had been convicted of trafficking.

13. This is a nefarious and lucrative trade. It is a very harmful trade. There was a substantial number of packets of drugs found - accepting that the overall quantity was not large.

14. We do not see that the sentence of 6 years here, though possibly on the high side, is such as to warrant our interference. The application for leave to appeal against sentence is refused.

Applicant - in person.

A.S. Hodge, Esq. for Crown/Respondent.

[1]   [1979] H.K.L.R 491