The Queen v. Chan Hing Hung

Case No.CACC 594/1989

Court

Court of Appeal

Date11 Oct 1990

Judge—

Case Document

100%

CACC000594/1989

IN THE COURT OF APPEAL	1989, No. 594
	(Criminal)

BETWEEN

THE QUEEN

AND

CHAN HING HUNG

Applicant

-------------

Coram: Hon. Sir Derek Cons, VP, Kempster & Penlington, JJA

Date of hearing: 11 October 1990

Date of delivery of judgment: 11 October 1990

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JUDGMENT

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Sir Derek Cons, VP; delivered the judgment of the Court:

1. Chan Hing Hung ("the Defendant") pleaded guilty to two charges of possession of dangerous drugs for the purpose of unlawful trafficking before Judge Evans sitting as a Deputy Judge in the High Court. The drugs involved were 4.663 kilogrammes of No. 3 heroin and 30.4 grammes of No. 4 heroin, which the judge was told would convert at the standard of purity then prevailing to 574 grammes of No. 3 heroin. He passed sentence on a constructive total of slightly more than 5.2 kilogrammes.

2. The heroin had been found on the 7th of March in a room to which the Defendant had the key and to which he had led the police officers who had arrested him at different premises. Together with the heroin were found an electronic balance, an ordinary balance, a sealing machine and a quantity of plastic bags.

3. That in brief is the substance of the summary of facts that was read out to the judge and admitted on the Defendant's behalf. The judge was also told that the Defendant had made a cautioned statement admitting the offences. The latter fact caused the judge to raise a query and the following exchange occurred between counsel and the judge:-

"	COURT:	Thank you, Mr Leung (Mr Leung appeared for the Crown). The only matter that concerns me arising out of those facts is that on the face of the facts themselves, I don't know what the accused intended to do or was doing with these drugs, but that appears in his cautioned statement, doesn't it, that he was in possession of most of the drugs at least for the purpose of packing them? Is there any context (sic) about that?
	MISS CHAINRAI: No, my Lord.
	COURT:	I want that clear, you see, because I want to know on what basis he's said to have these drugs because it is now very relevant to sentencing. But it's clear enough, isn't it, on the cautioned statement itself? I raise that point expressly because it has been deleted, hasn't it, from the first draft of the summary of facts?
	MR LEUNG: It has.
	COURT:	If I proceed to sentence on the basis that he did have possession of these drugs and was packing them or intended to pack them as indeed he says that, isn't that the same as was originally agreed?
	MR LEUNG: Yes, it was in fact the Crown's case that the defendant was using the
		premises for packaging."

4. This factor was reflected in the judge's sentences. He said:

	"... You are not simply storing drugs on your own admission when you were arrested: you were actively engaged apparently in packing. ...
	It has been said that there ought to be a sentencing distinction within the tariff ranges where activities such as packing and the like are involved, that as opposed to simply warehousing drugs. I make that distinction also."

and then imposed sentences of ten and five years respectively, ordering them to run concurrently. He added that he had made an allowance of three years for what he called the "pleas and co-operation" of the Defendant. That means he took a starting point of 13 years, which is a little outside the Chan Chi Ming bracket of eight to twelve years for amounts of mixture of 1,000 kilogrammes or more, unless the circumstances were very serious. The Defendant now applies for leave to appeal against that sentence.

5. The main ground raised on his behalf is that the judge should not have taken into account the packaging aspect. The submission is that defence counsel, who, as we have seen in the passage just quoted, agreed to that course, exceeded her instructions.

6. In the course of this application we have accepted as additional evidence under Sec. 83V of the Criminal Procedure Ordinance, Cap. 221, an affidavit by the Defendant which exhibits a copy of the written instructions he had given to the Director of Legal Aid. These clearly deny any personal involvement in the packaging of drugs.

7. We have also admitted under the same section a letter from the counsel concerned. From that it appears that on the morning of the trial the Defendant agreed to the draft summary of facts which was intended to be put before the judge, and which included the allegation that the Defendant was involved in packaging. Counsel observes that on her own initiative, and in order to put the Defendant's case in a more favourable light, shef persuaded counsel for the Crown to withdraw that particular allegation, an initiative that was in the event was set at naught by the subsequent intervention of the judge. The letter also makes clear that, as one would expect, the exchange between the judge and counsel was interpreted to the Defendant, and that if at the time he did not specifically agree, at least he raised no objection. In those circumstances the judge was quite right to deal with the matter on the basis that the Defendant was engaged personally in the packaging and there is no reason for this Court to interfere.

8. The second ground of appeal is that the starting point of the judge was beyond the guidelines then pertaining by reason of Chan Chi Ming. As we mentioned earlier the guidelines set a bracket of eight and twelve years. But guidelines, as is often said, are not strait-jackets and this was serious conduct on the part of the Defendant. We cannot accept that the sentences are manifestly excessive.

9. For those reasons the application for leave to appeal against them is refused.

(Sir Derek Cons)	(Kempster)	(R.G. Penlington)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

M.G. Cross, Q.C. & W.S. Cheung, Crown Prosecutor for the Respondent

Andrew Macrae (M/s Chao, Griffiths & Chan) for Applicant