THE QUEEN v. TAI WAI YUEN

CACC000210/1990

IN THE COURT OF APPEAL

1990, No. 210 (Criminal)

BETWEEN

THE QUEEN   AND   TAI WAI YUEN

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Coram: Sir Derek Cons, V. P., Kempster & Clough, JJ.A.

Date of Hearing: 27 December 1990

Date of Judgment: 27 December 1990

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JUDGMENT

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Sir Derek Cons, V.-P.:

1. The applicant, Tai Wai Yuen, was convicted by Judge Bokhary in the District Court of possession of dangerous drugs for the purpose of unlawful trafficking. He originally applied for leave to appeal against both the conviction and the sentence, but at the end of last month he abandoned his application as regards the conviction. He continues it with regard to the sentence.

2. The applicant was arrested by plain clothes policemen who found his conduct, together with that of the man who was accompanying him, somewhat suspicious. A search revealed that he had six packets of heroin in his pocket, subsequently found to be 35.05 grammes of a mixture containing 2.04 grammes of salts of esters of morphine.

3. According to the guidelines laid down by this Court in Chan Chi Ming [1979] HKLR 491 that amount would put the applicant in the bracket of three to five years' imprisonment. The judge imposed a sentence of three years. In our view, that was a lenient sentence. It was at the lower extremity of the bracket and yet the applicant has a substantial record for drug offences and has been to the Drug Addiction Treatment Centre on three occasions already. There was nothing to mitigate in his favour.

4. In his written application he suggests that others have received lesser sentences for similar offences. Reference to the Chan Chi Ming guidelines shows that if that in fact was so, then in those particular cases there must have been very special circumstances.

5. He suggests toady that the judge may have imposed a somewhat heavier sentence by reason of evidence which, in his view, may have indicated that his companion was in collaboration with the police to his prejudice. We see no reason to think that the judge was in any such way influenced.

6. There is no merit in this application whatsoever. We think it proper therefore that some of the time already spent in custody should be discounted. The application is refused; three months of the time already spent in custody shall not count towards the sentence of imprisonment.

(Sir Derek Cons)	(Michael Kempster)	(P.G. Clough)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Applicant - in person

Mr. A.A. Bruce for Crown/Respondent