HKSAR v. Ching Wan Fai

CACC000080A/2002

CACC80/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO.80 OF 2002

(ON APPEAL FROM DCCC 911 OF 2001)

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Coram: Hon Stuart Moore VP, Stock JA and Jackson J in Court

Date of Hearing: 11 December 2002

Date of Judgment: 11 December 2002

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J U D G M E N T

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Hon Jackson J (giving the judgment of the Court) :

1.On 28 January 2002 the applicant was convicted after trial before Deputy Judge Livesey in the District Court of three offences of trafficking in small amounts of heroin. He pleaded guilty to a further offence of possessing heroin.

2.For the first offence of trafficking (which concerned 0.10 of a gramme of heroin) the applicant was sentenced to a term of three years' imprisonment. For the second offence of trafficking (which concerned 0.12 of a gramme of heroin) he was sentenced to a term of three years' imprisonment, nine months of which was ordered to be served consecutive to the term imposed for the first offence. For the third offence of trafficking (which concerned 0.10 of a gramme of heroin) the applicant was also sentenced to a term of three years' imprisonment, nine months of which was ordered to be served consecutive to the sentences imposed in respect of the first and second offences. As to the offence of possessing heroin (0.57 of a gramme) the applicant was sentenced to a term of ten months' imprisonment, three months of which was ordered to be served consecutive to the sentences imposed in respect of the trafficking offences.

3.As a result, the total sentence ordered to be served by the applicant was four years and nine months' imprisonment.

4.The applicant sought leave to appeal before a single judge of this Court against both his conviction and sentence. As to the former, he asserted that the trial judge had "believed too much the evidence [adduced] by the prosecution, and was prejudiced against him". As to the latter, he asserted that the sentence imposed upon him in respect of the possession offence was too long.

5.When the application first came before Mayo VP, the applicant indicated that he did not wish to pursue his application in respect of sentence but no order was made concerning that matter when the hearing of the application was adjourned.

6.On 19 July, Mayo VP dismissed the applicant's application for leave in respect of his conviction but granted him leave to appeal against his sentence. Before us the applicant renews his application for leave to appeal against conviction and he pursues his appeal against sentence.

7.The applicant's complaints before us concerning his conviction can be summarized in short as follows :

(a) The trial judge rejected his evidence and that of his witness without giving sufficient reasons; and

(b) The trial judge accepted the evidence of the prosecution witnesses despite the differences between their evidence and that of the applicant and his witness.

8.In her reasons for verdict, the deputy District Judge recited in some detail the evidence which had been presented to her and, having done so, she assessed that evidence. In essence she expressed herself to be satisfied beyond a reasonable doubt that :

(a) On 1 and 2 May 2001, at the Sir Robert Black Health Clinic in Wong Tai Sin, a man handed over to the applicant's co-accused pellets of heroin which that co-accused then sold to an undercover police officer;

(b) on 3 May 2001 at that same location the same man, inter alia, asked the same undercover officer if he needed drugs; and

(c) at a subsequent identification parade, the identification of the applicant by that undercover officer as being the man concerned on 1, 2 and 3 May was both a reliable and a correct identification resulting from recognition.

9.At his trial, the applicant gave evidence in his own defence and he called as a witness his co-accused, a lady who had previously pleaded guilty to the same three offences of trafficking. In her evidence, she agreed that she had been handed pellets of heroin by somebody on 1 and 2 May but said that that person was not the applicant. As to the events on 3 May, she said that she could not recall anybody dealing with the undercover police officer despite that officer's evidence to the effect that she had intervened when the applicant attempted to sell heroin to him. The deputy judge disbelieved the applicant's co-accused and gave reasons for that disbelief.

10.As to the applicant's own testimony, the deputy judge concluded that he was a totally dishonest witness and again she gave detailed reasons for that conclusion.

11.For our part we can see no good cause whatsoever to disturb the deputy judge's findings and accordingly the application for leave to appeal against conviction is dismissed.

12.As to the sentences imposed upon the applicant we are of the view, as plainly was the vice president upon hearing the application for leave, that if one looks no further than at the amount of heroin concerned then the total sentence imposed may appear to be on the high side. However there was a good deal more to the offences than that as was recognised by the deputy judge in her reasons for sentence.

13.She found as aggravating features the fact that the offences were committed in the immediate vicinity of a methadone center where the vulnerable were trying to end their drug addiction and the fact that they were committed on successive days in what she described as a blatant and open manner.

14.Mr Hui for the respondent has drawn to our attention two, not dissimilar, cases in which this court reduced sentences imposed for a number of offences of trafficking in small quantities of heroin. However in both of those cases the defendants had pleaded guilty. The present applicant was convicted after trial and there lies the essential difference relative to sentence.

15.All of that said, having due regard to the principle of totality, we are of the view that the whole of the sentence imposed for the offence of simple possession should be served concurrently with the sentences imposed for trafficking with the result that the appeal is allowed to that extent. In other words, the total sentence to be served will be reduced by three months to four years and six months.

Representation:

Mr Martin Hui, SGC of the Department of Justice, for the Respondent

Applicant in person