The Queen v. Chan Wai Chun

CACC000569/1990

Headnote

Indication as to appropriate format when setting out facts and the decision thereon in reasons for verdict by a district court judge.

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Coram: Hon. Silke, V.-P., Power & Macdougall, JJ.A.

Date of Hearing: 18 April 1991

Date of Judgment: 18 April 1991

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced three charges. Two were of possession of dangerous drugs for the purpose of unlawful trafficking and one for possession of apparatus fit and intended for the injection of dangerous drug. The second of the possession of dangerous drugs charges that was the more serious as it involved 354.69 grammes of a mixture containing 13.42 grammes of esters of morphine. The applicant pleaded not guilty to all three charges and was, after trial before Judge C.B. Chan, found guilty on each charge. She was sentenced to imprisonment for one and a half years on the first charges, five years and three months on the second charge and six months on the third charge. She now seeks leave to appeal against both the convictions and the sentences.

3. In her Grounds of Appeal against conviction, she simply repeated the evidence which she gave in court and she has done so again when addressing this court. This evidence was rejected by the trial judge as wholly unworthy of belief and there is nothing which would allow us to go behind that finding. One matter in the Reasons for Verdict did, however, occasion this court some concern. The trial judge, when setting out her Reasons, made express findings as to credibility after she had summarized the evidence of the prosecution witnesses and again after she had summarized the evidence of the applicant. She then dealt seriatim with the submissions of the applicant's counsel urging rejection of the prosecution evidence. This format lends itself to the suggestion that the trial judge has made premature and conclusive findings of credibility before considering the evidence as a whole. We are satisfied on a full reading of the Reasons that this was not so in the present case. We think it proper, however, to indicate that when a judge in his or her Reasons does summarize the evidence it is very much preferable that findings as to credibility come after both prosecution and defence evidence has been reviewed so that it is apparent on the face of those reasons that the judge has arrived at those findings in the light of all of the evidence.

4. As we have indicated there is in the outcome nothing which would avail the applicant in this regard. Her application for leave to appeal against conviction is therefore dismissed.

5. The applicant also contends that her sentences were too severe and urges the court to be lenient as she has a mother who is blind and in need of care.

6. The trial judge when sentencing said that she took into account he quantity of drugs involved and applied the guidelines of this courts set out in the case of Chan Chi-ming v. The. Queen [1979] HKLR 491. The applicable guideline indicates that for between 150 to 1000 grammes the sentence should range from five to eight years. The quantity involved in the present case falls squarely within that range. The overall sentence of five years and three months was by no means excessive and nothing has been said that indicates that it would be proper for us to interfere therewith.

7. The application for leave to appeal against sentence is therefore refused.

Representation:

Mr. S.R. Bailey (Crown Prosecutor) for the Respondent.

Applicant in person.