The Queen v. Wong Leung Kwan

CACC000611/1989

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

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BETWEEN

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Coram: Hon. Sir T.L. Yang, C.J., Macdougall, J.A. & Kaplan, J.

Date of Hearing: 12 June 1990

Date of Judgment: 12 June 1990

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JUDGMENT

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Kaplan, J:

1. This is an application for leave to appeal against a sentence passed on the 23rd of November 1989. The sentence was one of 4 years' imprisonment on the first charge which was possession of 320.5 grammes of a mixture containing 13.86 grammes of salts of esters of morphine for the purposes of unlawful trafficking, and on the 2nd charge a sentence of 6 months' imprisonment concurrent for possession of a syringe and spoon fit and intended for the injection of a dangerous drug.

2. The offence was committed on the 12th of July 1989 when the police searched the defendant's premises and found 38 packets of a dangerous drug, another bag containing 4 packets of a dangerous drug and they also found the spoon and other apparatus.

3. The defendant admitted possession of the dangerous drugs and apparatus. He claimed the drugs were for his own use but this was rejected by the learned Judge.

4. It is clear to us that the sentence of 4 years imprisonment on the charge of possession of a dangerous drug for the purposes of unlawful trafficking is well within the guidelines that have been set down for this sort of offence.

5. We do not consider that this sentence was manifestly excessive. The only unusual factor in this case was the fact that the learned Judge had before hire a medical report which showed that the defendant had naso-pharyngeal carcinoma stage IV and had been treated with radiotherapy which finisher in 1985. He had recurrence of the cancer at the neck in June 1988 when he was treated with further chemotherapy.

6. Since the matter was before the learned Judge, three further medical reports had been provided which show that the applicant was last seen on the 29th December 1989 in good general condition. The report dated 30th November 1989 from the Consultant in Radiotherapy and Oncology at Queen Elizabeth Hospital shows that the average five year survival for stage IV naso-pharyngeal Carcinoma is around 30%. The Report continues as follows: "It is difficult to predict the life span of an individual although recurrence of disease in his neck gland in 1988 would signify a less favourable outcome".

7. We agree with the learned Judge that on the medical evidence which was before him, it fell far short of the necessary evidence for the Judge to take into account when deciding what sentence to impose for offences as serious as these.

8. On the evidence before us, there is clearly still insufficient material to come to any conclusion about the life expectancy of this applicant. This is plainly not one of those cases where there is evidence that the applicant is likely to die very shortly after the sentence was imposed. Different considerations could well apply to that situation. The learned trial Judge said "if there was clear medical evidence to the effect that the defendant can only expect to live another two or three years, the court may consider a sentence which would avoid his dying in jail". We think that statement goes too far because two or three years is a long time and there are so many imponderable factors particularly in a case such as this where there can be new drugs and remission that is sometimes unexplained. However, the learned Judge concluded by saying that "if the condition of the defendant further deteriorated anti that he is not expected to live long, I am sure a suitable application would be made to the relevant authority which would make such order as may be suitable relating to the further detention of the defendant". We respectfully agree with the learned Judge.

9. These matters are essentially matters for the appropriate authority who, we are sure, will consider any new situation in a compassionate manner at the appropriate time.

10. This application is accordingly refused.

Representation:

Mr. A.E. Schapel, Sr. Crown Counsel for Crown

Appellant in person