Chim Cheuk-fung v. The Queen

CACC000834/1982

BETWEEN

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Coram: McMullin, V.-P., Silke, J.A. & Penlington, J.

Date: 3rd February 1983

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JUDGMENT

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Silke, J.A.:

1. The applicant seeks leave to appeal against the sentences passed upon him on three counts relating to dangerous drugs.

2. He was jointly charged with WONG Ho-ching and LEE Hak-leung, the 1st and the 2nd accused, with manufacturing a dangerous drug on the 27th December 1981 - the drug being salts of esters of morphine.

3. He was jointly charged with the same co-defendants on the 2nd count for possession of a dangerous drug for the purposes of unlawful trafficking: 4, 847.76 grammes of a mixture containing 1,353.5 grammes of salts of esters of morphine.

4. There was a 3rd count again, in respect of all three, of possession for the purposes of unlawful trafficking of 1,795.20 grammes of a mixture containing 1,157.45 grammes of esters of morphine, that is morphine base.

5. On each of the counts he was sentenced to a period of 10 years' imprisonment. The sentences were ordered to run concurrently, that is, a totality of ten years. He was represented at his trial at which he pleaded guilty.

6. The facts were that there was a raid on a premises at Amoy Garden in Ngau Tau Kok Road. It was clear from items that were found in that premises that manufacture of dangerous drugs was taking place, these included the drugs, the ingredients and the equipment necessary for such an operation. All three defendants were present.

7. The applicant indicated to the police where the keys of a desk were to be found and in that desk were found drugs.

8. It is clear that the 1st and the 2nd defendants were the prime movers in this matter. They had arranged to rent the premises. The 3rd defendant at trial, the applicant, was an employee of the 2nd defendant.

9. It is equally clear that the applicant did participate in the manufacture. In his hair clippings, nail clippings and clothing were found traces of salts of esters of morphine.

10. The basis of the applicant's application is that his employer had received the same sentence as himself.

11. The trial judge, in passing sentence, said that he intended to proceed on the basis that the 1st and 2nd defendants were "deeply involved". He clearly treated the 1st defendant at trial as the major participant and passed a sentence of 12 years' imprisonment upon him: he also had previous drug convictions.

12. The applicant and the 2nd defendant did not have previous convictions. There were two other counts, which do not concern this applicant, against the 1st and the 2nd accused on which concurrent sentences were passed.

13. We accept that the applicant's part in this was not as great as that of the 1st and the 2nd defendants. The trial judge did not make reference to this other than obliquely, by reference to the parts played by the 1st and 2nd defendants.

14. People who involve themselves in matters of this kind can expect very little mercy from the Courts. It is a serious and vicious crime and can do untold harm to many many people.

15. That having been said, and while the ten years totality is by no means excessive, we think there should have been a differentiation in sentence between this applicant and the other defendants.

16. We therefore give leave to appeal, allow the appeal to the extent of reducing the sentences of 10 years on each of the counts to one of 8 years to run concurrently.

17. The sentence will run in the normal way from the date of his committal in the High Court for trial: though asked we see no reason to alter that.

Representation:

Applicant in person.

C. White, Esq., for Crown/Respondent.