The Queen v. Chan Kim Fung
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CACC000109/1990
BETWEEN
--------- Coram: Hon. Sir Derek Cons, Ag. C.J., Power & Macdougall, JJ.A. Date of Hearing: 22 August 1990 Date of delivery of judgment: 22 August 1990 ----------------- JUDGMENT ----------------- Sir Derek Cons, Ag. C.J., delivered the judgment of the Court: 1. Chan Kim Fung, the Defendant, pleaded guilty on 15th February before Duffy J. to two counts of possession of dangerous drugs for the purpose of unlawful trafficking. 2. He had been arrested by customs officers on 14th June last year, coming out of a flat on the 6th floor of a building in Kwai Chung. Tucked between his jeans and his underpants were three paper bags, in each of which were ten polythene bags of No. 3 heroin. Inside the flat, in a wardrobe in one of the cubicles, were more polythene bags containing both No. 3 and No. 4 heroin and some packing paraphernalia. 3. The Defendant told the officers that he was running the drugs as an errand for a gentleman called "Ah Shing" and that he had run similar errands five or six times before. He said Ah Shing paid him $150 a time. More recently to a probation officer he said that he was promised $l,000 - $2,000 daily. 4. The amounts of the drugs concerned in the first count were 236 grammes of No. 3 heroin, and in the second count 715 grammes of No. 3 and 14 of No. 4. The judge gave eight years on each count, the sentences to run concurrently. Taking the dangerous drugs as a whole the sentences do not violate the guidelines of Chan Chi Ming. If No. 4 heroin is converted into No. 3 the amount brings the Defendant within the eight to twelve year bracket. Nevertheless he applies, now with the assistance of, counsel for leave to appeal. 5. The basic allegation in the third ground of the Perfected Grounds of Appeal is that:
When one looks at some of the observations made by the learned judge both during the submission in mitigation and when giving his reasons for the sentences he imposed, it is easy to understand why the Defendant should think that to be the case. But we have to note that in fact it was not, as the judge himself ultimately made clear. 6. The other grounds of appeal are that the judge ignored or gave insufficient credit to the pleas of guilty and that the Defendant is only 18 years of age. This Court has often said that in crimes of this nature age at either extreme is of little or no value as mitigation. On the other hand a plea of guilty always gives some entitlement to discount, the actual amount being within the discretion of the judge and depending to a large extent on the circumstances. It may be that in the present instance the judge did not give a great deal of weight to the pleas of guilty, but we are not persuaded that he gave none at all. 7. The Defendant may have had an unfortunate upbringing and that since his arrest such family as he does have here have deserted him. These however are personal matters, which like youth and old age, count for little in relation to dealing in dangerous drugs. 8. For these reasons the application for leave to appeal is dismissed.
Representation: G.E. Forlin, Crown Prosecutor for the Respondent Miss Charlotte Draycott (D.L.A.) for the Applicant |