Case Detail

CACC000248A/1997

CACC 248/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 248 OF 1997

(ON APPEAL FROM HCCC NO. 337 OF 1996)

BETWEEN
	HKSAR	Respondent

	AND

	CHUNG MEI LIN	Applicant

Coram : Hon Stuart-Moore, V-P, Wong, JA & Burrell, J in Court

Date of Hearing : 16 December 1999

Date of Judgment : 16 December 1999

______________________

J U D G M E N T

______________________

Wong, J.A. (giving the judgment of the Court) :

1. The Applicant was jointly indicted with her boyfriend, a man by the name of FAN Chi-keung, who was D2 at the trial for one count of unlawfully trafficking in a mixture containing 161.66 grammes of heroin hydrochloride. They appeared before Deputy Judge Hartmann (as he then was) in the Court of First Instance on 29 April 1997 when D2 pleaded guilty to the indictment. The Applicant entered a plea of not guilty at first but changed her plea to guilty after D2 had pleaded guilty and indicated that he would give evidence against the Applicant. In the result, D2 was sentenced to 7 years' imprisonment and the Applicant to 8 years. An application for leave to appeal against sentence by D2 was dismissed by this Court, differently constituted, on 7 November 1997. The Applicant also filed a notice for leave to appeal against her sentence shortly after the sentence but she abandoned it by notice dated 8 July 1997. On 14 September 1999, she lodged a notice to have her notice of abandonment treated as a nullity so as to allow her to apply for leave to appeal against sentence out of time. She gave her reasons in a written statement which she has repeated before us this morning. First, she said she abandoned her application for leave to appeal against her sentence because her application for legal aid was refused. Second, she thought that she wanted a longer period in prison to completely rid of her drug addiction. Third, she was under the influence of D2 to commit the crime and felt aggrieved that D2 received a shorter of sentence than she because D2 was, in fact, the mastermind of the crime. Fourth, she now understands that freedom is valuable and wants to be released early to look after her aged and blind mother and her daughter who has been missing for some time.

2. Both the Applicant and D2 were drug addicts of very long standing.

3. The present application to treat her notice of abandonment is made after more than 2 years and 2 months have elapsed since the abandonment. At the time she made the notice of abandonment she was fully conscious of what she was doing. In our view, the Applicant has not advanced good and sufficient reasons to support her application to treat her notice of abandonment as a nullity. Accordingly, her application is dismissed.

(M Stuart-Moore)	(Michael Wong)	(M.P. Burrell)
Vice-President	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr William LAM, SGC, for DPP/Respondent

Applicant in person

CACC000248/1997

IN THE COURT OF APPEAL

1997, No.248
(Criminal)

______________

BETWEEN
	HKSAR

	AND

	FAN CHI KEUNG

______________

Coram: Hon. Power, V.-P., Stuart-Moore and V. Bokhary, JJ.

Date of hearing: 7 November 1997

Date of judgment: 7 November 1997

______________

J U D G M E N T

______________

Power, V.-P. (giving the judgment of the Court):

1. The applicant FAN Chi-keung faced one count of trafficking in a dangerous drug. That count alleged that he and Chung Mei-lin on 17th July 1996 at Room B, Block C, 9th Floor, Hing Fat Building, 696 Shanghai Street, Mongkok, unlawfully trafficked in 215.49 grammes of a mixture containing 161.66 grammes of heroin hydrochloride. He pleaded guilty to that charge and was sentenced to imprisonment for seven years. He now seeks leave to appeal against that sentence.

2. The applicant was himself a drug addict. He was at the time of the offence running a supply centre for a person called Frankie. The other defendant was his former girlfriend and she also was an addict and had become involved in the supply operation after she had approached him seeking dangerous drugs.

3. The applicant has a bad record for serious offences which includes two of trafficking. His plea of guilty was the circumstance of real weight in the assessment of sentence.

4. The trial judge said:

"The one, indeed, the most important area of mitigation put forward on his behalf is that on the first day of the scheduled trial, this defendant indicated that he wished to plead guilty to the offence charged and did, in fact, do so when he was arraigned. Further than that, he made it clear to the prosecuting authorities that he was willing to give evidence as a Crown witness against his co-defendant, Chung. To this end, he did give a very full and frank witness statement to the police, and I have had sight of that statement.

I have also been advised by prosecuting counsel that his co-operation may be of benefit to the police in other areas. The fact that his co-defendant Chung on reflection has changed her plea from one of not guilty to guilty, means of course that Fan has not actually had to step into the witness-box to give evidence, but that, in my judgment, having regard to his actions of a patent co-operation over the last few days, is a matter of little moment. The plea may have been relatively late in coming but there is no doubt that his intention to give evidence for the Crown added materially to the prosecution arsenal of evidence."

The judge then referred to decisions which indicate that a discount should be given for a plea of guilty and for a real measure of co-operation with the police. He assessed a starting point of 11 years which was a proper one given the quantity of drugs involved. He then gave a discount of four years.

5. The grounds which the applicant has put forward to us in writing state:

"I did give evidence in this case which resulted in the conviction of my co-defendant. I had been a prosecution witness but the judge did not take this into account by giving me the deserved discount for sentence."

We think he must by that mean that he gave a statement involving his co-defendant.

6. He added to these grounds by a letter dated 8th October in which he said that he had supplied information to the police which led to conviction of the co-defendant. This puts the position correctly and this was acknowledged by the trial judge.

7. The applicant further stated:

"Now I have already supplied information to Inspector Lau siu-nam of the Narcotics Bureau which led to the arrest of Frankie."

8. Mr. Blanchflower, who appears for the prosecution, has in his written argument indicated that it is true that the applicant gave information about Frankie but this was prior to his arrest for this offence and was not a matter which could be properly taken into account to his credit when assessing the sentence to be imposed on this offence. That seems to us to be unarguably so. The starting point of 11 years was a proper one. The discount because of plea and co-operation of four years was in our view properly assessed and there is, therefore, nothing that would allow us to interfere with the sentence.

9. The application is refused.

(N.P. Power)
Vice-President

(M. Stuart-Moore)
Judge of the Court of First Instance of the High Court

(V. Bokhary)
Judge of the Court of First Instance of the High Court

Representation:

Mr. Michael Blanchflower, S.A.D.P.P. (D.P.P.) for the Respondent.

Applicant in person.

HKSAR v. CHUNG MEI LIN

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