R. v. Yu Chi Ming

CACC000769/1995

1995, No.769
(Criminal)

IN THE COURT OF APPEAL

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Coram : Hon Yang, C.J., Bokhary, J.A. and Sears, J. in Court

Date of hearing : 17 May 1995

Date of judgment : 17 May 1995

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J U D G M E N T

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Sears, J. (Giving the judgment of the Court) :

1. This applicant was convicted before Deputy Judge Andrée Wiltens in the District Court on November 10th of trafficking in a dangerous drug.

2. He admitted possession of 78.13 grammes of a mixture containing 18.83 grammes of heroin. He said he was not trafficking. However, he gave a full confession to the police and the evidence with regard to the value of this drug and his own means clearly indicated that he was indeed trafficking. We can find nothing in the conviction which is in any way flawed and the application for leave to appeal against conviction is dismissed.

3. As far as the sentence is concerned, he is aged 73, and has some 38 previous convictions, many of them concerned with drugs. The Judge took a starting point of 5½ years, which is within the appropriate range, and discounted it for his advanced years and his limited saving of court time to one of 4 years imprisonment.

4. During the trial, the Judge held a voire dire into the admissibility of his confession statement and during that voire dire, the applicant made certain allegations about the conduct of the police officer who took it. In sentencing this applicant, the Judge said this :

"He had not however, shown any remorse before me for his conduct, and had challenged the admissibility of the record of interview, thereby casting aspersions against the police investigating this case, which I disbelieved. I considered that to be an aggravating factor."

5. That, in our judgment, is wrong in principle. A person is only sentenced for the offence which is committed. We should therefore make some allowance for the fact that the Judge may have increased his sentence by virtue of him considering that challenging the record of interview was indeed an aggravating factor. We propose to make a reduction of 6 months. We therefore give leave to appeal against the sentence imposed, treat this as the hearing of the appeal and reduce the sentence from one of 4 years imprisonment to one of 3½ years.

Representation:

Mr A.E. Schapel, S.C.C., for Crown/Respondent

Applicant in person