Case Document

CACC000109/1991

Headnote

Sentence: Leave to appeal out of time: principles

IN THE COURT OF APPEAL	1991, NO. 109
	(Criminal)

BETWEEN

THE QUEEN

Respondent

AND

HO CHIN MING

Applicant

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Coram: Sir Ti Liang Yang, CJ, Silke, V-P and Power, JA

Date of Hearing: 23 October 1991

Date of Judgment: 23 October 1991

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JUDGMENT

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Silke, V-P:

1. This is the judgment of the Court.

2. On 14th May 1990 after trial in the District Court before Her Honour Judge Chua, Ho Chin Ming was convicted of three offences. The first was possession of dangerous drugs for the purpose of unlawful trafficking, the particulars of which alleged he did, on 3rd November 1989, on the ground floor, rear portion of 120 Far Yuen Street, have in his possession 80.03 grammes of a mixture containing 15.59 grammes of salts of esters of morphine. The second charge was that of possession of apparatus fit and intended for injecting and inhaling dangerous drugs. The evidence was that he had 13 syringes with needles, spills, four candles a Winston cigarette packet with two other syringes and a separate needle, a matchbox cover, two pieces of tin foil, a broken spoon, plastic bags and a red plastic lighter. The third charge was that of assaulting Police Officer in the execution of his duty.

3. He was sentenced respectively to six and a half years imprisonment on the first charge, six months concurrent on the second and one month consecutive on the third, giving a total period of six years and seven months. He now applies to this Court out of time to appeal against the sentence of six and a half years on the possession of drugs charged. We are not directly concerned with the two other charges.

4. What had happened was this. After all the evidence had been heard, and that included the evidence of the applicant himself and two witnesses, the court, on 14th May, adjourned at 12.30 in the afternoon until 3.00 p.m. to render its verdict. At 3.00 p.m. when the court resumed, the applicant was not present. There was another adjournment to 3.30. Again he was not present though his counsel, instructed by the Director of Legal Aid, was in court. Judgment was pronounced and Reasons for Verdict were orally delivered at that time. Because of his absence the matter of sentence was adjourned and a warrant of arrest was ordered to issue. His bail of $4,000 was forfeited.

5. On 30th May the sentencing process resumed. He was again absent. The warrant of arrest had not been executed. The Director of Legal .Aid was not in a position to assist further, therefore, counsel's instructions were withdrawn. Sentence was then pronounced.

6. At the time of passing the sentences she did, the trial judge was appraised of the judgment delivered on the previous day in R v Lau Tak Ming.[1990]2 HKLR 370 That judgment related to a new set of sentencing guidelines and referred to the narcotic content of the mixture as the main basis upon which sentence is to be assessed. It was on that basis that the sentence here of six and a half years was passed. Because the applicant had been found both with what is commonly known as No 3 heroin and with No 4 heroin, the judge broke down the quantities in the charge as to: 13.56 grammes No 4 heroin and 66.47 grammes No 3 heroin. Her attention does not appear to have been drawn to the decision in R v Cheng Yeung [1989] 2 HKLR 258, for she said - in relation to the practice that should pertain as to sentencing in these circumstances, and having quoted from Lau Tak Ming, that "sentence for an offence should be in accordance with practice prevailing at the time of commission of the offence" - that:

"That is all very well and applicable to No 3 heroin i.e. 66.47 grammes. But what about the 13.56 grammes of No 4 heroin found on the premises?"

Again, and with respect, Lau Tak Ming did not apply at all for the offence was committed well before the date of the judgment in that case.

7. To Continue the saga, the warrant of arrest, although there is nothing to show that in the record of proceedings, was executed. It was not until 19th February 1991 that the applicant was before a Deputy Judge of the District Court. The Deputy Judge told the applicant of the sentence which had been passed on him. This was information which the applicant already had for, by that time, he had been rendered into the custody of the Commissioner of Correctional Services who would have informed him of the verdict and sentence on his entry to prison.

8. Counsel, then appearing for the Crown, not Mr McWalters, suggested that the case be sent back to Judge Chua for "formal declaration of sentence", whatever that may mean. As a result the applicant appeared before Judge Chua on 20th February 1991. The judge added a rider to the sentence she had already pronounced informing the applicant that she had then made a mistake, that is by her application of the guidelines in Lau Tak Ming. She thought he should have been sentenced under the guidelines in Chan Chi Ming. [1979] HKLR 491. Again, she made no reference to Cheng Yeung. She advised the applicant that she thought the sentence should be less than five years on the charge. She left it open to the applicant as to whether he wished to appeal.

9. As we have indicated earlier, he did so wish, and has sought, as he must, leave to appeal out of time.

10. In R v Wong Kai Kong and another Cr App 332 of 1989, surprisingly unreported, this court said at p 3:

	"In considering whether the applicants should be granted the indulgence they seek it is first necessary for us to consider not only the reasons advanced in the grounding affidavits for the failure timeously to make application but also the period of time which has elapsed between the conviction and the application -here, as we have indicated, ten months - and generally the bona fides of the applicant. But there is also a line of authority which runs from the judgment of the English Court of Appeal in Marsh [1935] 25 Cr App R p 49 through to a decision in this jurisdiction the Queen v Ip Chung Hang (CA 345 of 1988 - unreported) and we also bear in mind that which took place in a reported case of the Queen v Yiu Tat Hoi [1983] HKLR 7.
	The proposition emerges from those authorities that it is open to this Court to take that which Hunter, JA. in Ip Chung Hang described as an 'unusual course', that the Court look at the grounds of appeal to see if they seem to its members to be impressive and to check
		"that by refusing leave to appeal we were not shutting out a substantial and plainly arguable ground of appeal."
	In this exercise this Court should bear in mind that substantial grounds must be shown for the delay before the granting of the indulgence. The longer the delay the more onerous is the duty on the person making application ..."

11. We would add that, in addition to that which was said in Wong Kai Kong, there is a bias against the granting of the indulgence to a man who himself contrived the impediment which he seeks to overcome, as is the case here. The applicant had absconded and entirely through his own fault, not having made any inquiries as to the result of the case against him, was not aware of the sentence and conviction until 1991.

12. But that having been said, we equally look to the Grounds of Appeal and to the submissions advanced to us by Mr Kwok today. He suggests that the sentence here should have been strictly a Chan Chi Ming sentence and that the conversion, adumbrated in Cheng Yeung, should not have been, and was not, used in the court below. We should, therefore, not consider applying such a conversion now. In November 1989 as was said in Lau Tak Ming, there was an increasing market for No 4 and little or market for No 3 so. It does not matter whether the applicant was in possession of one or the other or both.

13. With respect we do not agree. To arrive at a proper sentence the Court should have been advised by way of evidence of the conversion of the No 4 narcotic mixture into No 3 which is, and still continues to be despite its unpopularity, the saleable mixture.

14. The chemist certificate which was before the trial judge is a lengthy one, containing 14 separate items in which, the analysis showed, amounts of drugs were found. The largest amount was No 3 heroin in the mixture of 54.38 grammes containing 2.66 grammes of salts of esters of morphine and found in eight plastic bags. Among many; other plastic bags containing various minor amounts which were obviously ready for the consumer and the No 4 heroin was contained in another series of plastic bags but in smaller amounts.

15. In the course of the hearing we adjourned so that information could be given to this Court, emerging from the analysis, of the purity of the No 3 as compared with the purity of the No 4 heroin and thus to arrive at a multiplier for conversion purposes. We accept the figures presented to us, and usefully, by Mr Kwok are rough figures and not intended to be exact, but a multiplier of approximately 19 appears from it. If one applies that to the No 4 narcotic one gets 275 grammes of No 3 that, added to, the actual No 3 found in possession of the applicant, brings the total to 324 grammes of a mixture which by way of Cheng Yeung and applying the Chan Chi Ming guidelines comes within the "substantial" category, that is between 150 - 1000 grammes for which the sentencing range is from 5 to 8 years.

16. This instant sentence, though through inadvertence, falls within that sentencing bracket. Had the trial judge been advised of Cheng Yeung at the time of sentence and of the conversion that can be found by use of the chemist certificate - without the necessity in this particular case for the usual evidence from an expert witness - we think that her sentence would have remained unaltered. She was in error in thinking that the quantities in the charge as to mixture were to be solely by the Chan Chi Ming guidelines. That being so we do not think that by refusing leave, we would shut out a substantial and plainly arguable ground of appeal. As we have said earlier, the lateness of the application was something which the applicant brought entirely upon himself. We do not think this is the case in which leave out of time should be granted and leave out of time is therefore refused.