R. v. TANG WING HUNG

IN THE COURT OF APPEAL

1996, No. 390
(Criminal)

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J U D G M E N T

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

1. On 27th June 1996 the applicant Tang Wing-hung was convicted by Her Honour Judge Chua in the District Court on his own plea of unlawful trafficking in dangerous drugs. The quantity was 337.15 grams of a mixture containing 43.65 grammes of heroin hydrocholoride. He was sentenced to 5 years imprisonment. By notice of appeal dated 12th July 1996 he now applies for leave to appeal against sentence.

2. He first came before us on 11th December 1996. On that occasion he said that some 20 days before trial he had applied for legal aid. So, when he came to court, he thought that a lawyer would show up but he did not see one. We were not able to ascertain then and there what had happened to his application. So we adjourned the matter and with the assistance of Mr Bruce QC, who appeared for the Crown with Miss Lily Ho, we have now had the matter investigated.

3. It appears, and the applicant has accepted, that he first of all applied for legal aid on 18th January 1996 and a legal aid certificate was granted on 5th February 1996. On that day, he appeared in court with representation provided in pursuance of the legal aid certificate. Thereafter, the Legal Aid Department made several unsuccessful attempts to obtain instructions. A notice to show cause why his certificate should not be discharged was ultimately sent to him. Subsequently arrangements were made with him by telephone for him to attend the Department on 29th April 1996. He failed to attend and the legal aid certificate was discharged. A notice of discharge was sent to him dated 1st May 1996. He appeared, unrepresented, in court on 8th May 1996 and his bail was revoked. He then on 13th May 1996 applied again for legal aid and a second legal aid certificate was granted on 16th May. He was in fact represented by the Legal Aid Department on 17th May 1996 when a date for his trial was fixed. But thereafter he decided to appoint his own solicitors which he did. They communicated with the Legal Aid Department and as a result the legal aid certificate was discharged. He then proceeded to discharge his own solicitors, he tells us today, because he was not able to afford the fees. He also tells us today, that he then told the Prison Welfare Officer he wanted to apply a third time for legal aid. He says the Welfare Officer took a note of his particulars and his identity card number and he thought that the Welfare Officer would apply for legal aid. There is no substance in that suggestion because he did in fact sign applications for legal aid on the previous occasions, but never did so on this third occasion. He says he understands, and in fact accepts, that on the third occasion no application was actually made. Plainly, therefore, he had no right to expect a lawyer to be present at his trial and should not have been surprised that there was no lawyer waiting to represent him. More than that, he has misled this Court in that complaint and put the Crown, the Legal Aid Department, and this Court, to a lot of trouble in investigating an unfounded complaint. That is a matter I shall return to.

4. I proceed to his written notice of application for leave to appeal against sentence. This contains the following three grounds to which he has not sought to add anything this morning:

"(1) I pleaded guilty. The judge used 7 1/2 years as a starting point and sentenced me to 5 years imprisonment. I think the sentence is too heavy. I therefore request a reduction of sentence."

5. At this point, I should turn to the facts very briefly. On 5th October 1995 police officers of the Special Duties Quad of the New Territories Headquarters, on information, proceeded to the second floor of premises in Sam Tung Uk Village in Tsuen Wan. They saw the applicant there with a woman sitting at a table. When they searched the room, they found the drugs we have already mentioned and paraphernalia for packaging. The applicant admitted the offence of trafficking in drugs and he sought to exonerate the woman who was not charged.

6. What the judge said in imposing her sentence was this:

"We are dealing with a substantial quantity of heroin, 43.65 grammes, which takes us into the upper part of the second band of the tariff set out in R v LAU Tak-ming."

She was entirely correct there. The second band is in respect of 10-50 grammes of narcotics and it attracts a guideline sentence of 5 - 8 years. Returning to what the judge said, she added:

"I shall treat him as a first offender. I use a starting point of 7 1/2 years, but for your plea I give you a full third discount."

She proceeded to sentence him to 5 years. In that, again, her sentence was entirely proper not only in that starting point but also because she afforded the applicant the full usual discount of one-third.

7. Accordingly, there is nothing in the first ground complaining that the sentence was too heavy.

8. Turning to the second ground, it is this:

"(2) In my opinion, District Court has its power as a District Court while High Court has its power as a High Court. ... the maximum point of District Court is 7 years' imprisonment. If this is true, the District Court judge has gone beyond jurisdiction."

Again, there is nothing in this point for the jurisdiction of the District Court is set by the sentence imposed and not by the starting point by which that sentence comes to be assessed.

9. The third ground is that:

"On that day when verdict was delivered, why is it that I have applied for legal aid but there was no lawyer to mitigate (on my behalf) in court? Since I have no legal knowledge, I would like to ask whether it is unfair to me when there was no layer to represent me on that day."

From what has already been said, it can be seen that there is nothing in this ground. Worse than that, it is misleading for the applicant well knew the facts already recounted.

10. In the light of the foregoing, we invited the applicant to show cause why part of the time he spent in custody pending the determination of his appeal should not be disallowed from being reckoned as part of his sentence under s.83W of the Criminal Procedure Ordinance (Cap. 221). He again reverted to what he claimed he had told the Principal Welfare Officer. There might well be some doubt about whether he actually did so. But however that may be, simply upon the unmeritorious nature of the application, we think that a period of 3 months should be disallowed. We accordingly so order.

11. We refuse the application for the reasons we have given.