THE QUEEN v. TSE FAI CHANG

CACC000360/1986

IN THE COURT OF APPEAL

1986, No. 360 (Criminal)

BETWEEN

THE QUEEN   and   TSE FAI CHANG

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Coram: Yang & Silke, JJ.A.

Date of hearing: 5th November, 1986.

Date of delivery of judgment: 5th November, 1986.

 

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JUDGMENT

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Yang, J.A.:

1. This is an application against the sentence of 6 years passed upon the Applicant for possession of a dangerous drug for the purpose of unlawful trafficking.

2. The Applicant has a very bad record: 16 previous convictions, 13 of which were drug offences.

3. The judge in passing sentence obviously took into consideration the substantial amount of dangerous drug involved, namely 34.75 grammes of a mixture containing 5.43 grammes of salts of esters of morphine. In the light of the guideline laid down in Chan Chi Ming, a sentence of 3 to 5 years would have been appropriate for that amount. The judge however imposed a sentence which went beyond that suggested by the guideline, obviously for two reasons. Firstly, the bad record, which the judge was entitled to take into account on the basis of Chan Chi Ming. Secondly, because the Applicant made up a false story and testified against the arresting officer that he or his colleagues had planted the drugs on him. In our view a sentencing judge is not entitled to take into consideration, for the purpose of assessing sentence, the manner in which a defendant conducted his defence: vide Thomas on Principles of Sentencing, 2nd ed., pp. 50-51.

4. In the light of all the circumstances, we would treat the application as the hearing of the appeal, allow the appeal and reduce the sentence of 6 years to one of 4 years.

T.L. Yang Justice of Appeal

Representation:

Graeme Hagon (D.L.A.) for the Applicant

I.G. Cross for Crown/Respondent