Case Detail

CACC000767A/1997

CACC 767/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 767 OF 1997

(ON APPEAL FROM DCCC 1034/1997)

BETWEEN
	HKSAR	Respondent

	AND

	CHAN CHI YU	Applicant

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Coram: Hon. Mayo, Stuart-Moore, JJ.A. and Keith, J. in Court

Date of hearing: 13 May 1999

Date of delivery of judgment: 13 May 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. At a late stage in his trial in the District Court before Judge Kilgour the applicant who had been charged with trafficking in dangerous drugs changed his plea from not guilty to guilty.

2. At the conclusion of the trial the applicant who was D2 was sentenced to 5 years 3 months imprisonment. His co-accused who maintained his position to the end of the trial was sentenced to 6 years imprisonment.

3. The quantity of heroin involved was 25.54 grammes of a mixture containing 23.12 grammes of narcotic content. It would appear that the Judge was well within the R. v. Lau Tak-ming [1990] 2 HKLR 370 guidelines in adopting 6 years imprisonment as his starting point.

4. In the present application Mr. Jerome Matthews for the applicant raises the question of the amount of the discount the Judge gave the applicant for changing his plea.

5. Had the applicant pleaded guilty at an early stage he would have been entitled to receive a discount of 33% or 2 years off the sentence.

6. In his Reasons for Sentence the Judge refers to the small amount of time saved and the little remorse he had demonstrated in the light of the serious allegations he had made against prosecution witnesses (presumably) during the course of his trial.

7. We do not think for one moment that the Judge can be faulted in coming to the conclusion that where a defendant has chosen to vigourously contest proceedings the discount he should receive should be substantially reduced. This is a matter which comes within the Judge's overall discretion and we are not persuaded that the exercise of this discretion should be interfered with in the present case. Accordingly this application is dismissed.

(Simon Mayo)	(M. Stuart-Moore)	(B. Keith)
Justice of Appeal	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr. W. S. Cheung, D.P.G.C. (D.P.P.) for Respondent

Mr. Jerome Matthews instructed by M/S Wong, Packwood & Co. for Applicant

CACC000767/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 767
(Criminal)

BETWEEN
	HKSAR	Respondent

	AND

	LAM KWOK FUNG	1st Applicant
	CHAN CHI YU	2nd Applicant

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Coram: Hon. Power, V.-P., Leong and Stuart-Moore, JJ.A. in Court

Date of hearing: 26 November 1998

Date of delivery of judgment: 26 November 1998

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J U D G M E N T

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

1. The 1st applicant Lam Kwok Fung was convicted in the District Court before H.H. Judge Kilgour on 26 November 1997 of one count of trafficking in a dangerous drug. He was charged jointly with another defendant, the 2nd applicant. He was convicted after a trial and was sentenced to 6 years' imprisonment.

2. The 1st applicant now applies for leave to appeal against conviction out of time. His notice of appeal was filed on 3rd January 1998 and the reason he gave for the delay was that he waited until 31st December 1997 when he could formally retain a lawyer before he could formulate the grounds of appeal. The 2nd Applicant did not pursue his application in relation to conviction and it was therefore dismissed.

3. The 1st applicant's grounds of appeal against conviction were prepared by his former legal representatives. He now acts in person. The grounds prepared by his former lawyer are:

"1. The judge wrongly drew an irresistible inference against the applicant that he was on a joint enterprise with the 2nd applicant.
2. The judge failed to evaluate the applicant's testimony in a proper manner when the applicant admitted he was a self confessed drug addict."

4. The 1st applicant adopts those grounds as his grounds of appeal. He adds a further ground orally and that is "at the time he was merely consuming white powder and he did not sell white powder."

5. The prosecution evidence is this. A party of police officers led by an inspector went to Room 2001 at the Man Sam building and waited outside the door. The 1st applicant's two daughters later came back to the premises. When the door was opened by the 2nd applicant, who pleaded guilty to the offence in the course of the trial, the officers rushed in. They found the 1st applicant in the living room. He was trying to open the living room window. A struggle between the 1st applicant and the officers ensued. The 1st applicant was at the time holding a pair of scissors and two packets. The packets were subsequently dropped on the sofa and found to contain dangerous drugs. After the 1st applicant was subdued, he was cautioned and under caution, he said: "Ah Sir, I did it twice at home and both times you learned it. I have nothing to say." A quantity of packets containing dangerous drugs, plastic sheets similar to the wrappers of the packets, a hammer with traces of heroin were found in the room. The total quantity of dangerous drugs found was 25.54 grammes of a mixture containing 23.12 grammes of heroin, the subject matter of the charge. Traces of heroin were also found in the hair samples and finger nail clippings of the 1st applicant. The prosecution case is that both the 1st applicant and the other person, the 2nd applicant were in the course of packing dangerous drugs when the police raided the premises.

6. The 1st applicant's defence was that the living room was occupied by the 2nd applicant. The 1st applicant said that he was a drug addict and earlier he had injected dangerous drugs and he went to sleep in his own bedroom. He had no knowledge of the drug activities in the premises until the police arrived and arrested him in the bedroom. He did not see the drugs seized until after his arrest.

7. The judge in his reasons for verdict said "I found the police sensible honest and refreshingly professional and thoroughly credible. Adversely, I found the 1st defendant unimpressive." Later in his reasons for verdict, the judge said "I could not believe his assertion that he did not know what was going on in this flat over which he had control and that he had allowed the 2nd defendant to take charge of his home in the manner he described." The judge found the 1st applicant was addicted to drugs and was jointly engaged in packaging drugs with the 2nd applicant and that he had attempted to get rid of two packets of dangerous drugs through the window.

8. These findings of fact are supported by the evidence accepted by the judge and they are not opened to challenge. On these findings, the judge was entitled to convict the 1st applicant on the offence charged. There is no merit in his appeal and the application for leave to appeal out of time must be dismissed.

(N.P. Power)	(Arthur Leong)	(M. Stuart-Moore)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. & Mr. Lee Ka Yun, Kelvin, G.C. for Respondent

1st applicant in person - Lam Kwok-fung

2nd applicant in person - Chan Chi-yu

HKSAR v. CHAN CHI YU

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