THE QUEEN v. CHAN HOI MING

-----------------

-----------------

JUDGMENT

-----------------

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

1. The applicant faced a charge of administering poison or other destructive or noxious thing so as to endanger life, contrary to s.22 of the Offences against the Person Ordinance, Cap.212. The charge particularized that on he, on 4th June 1994, at room 1211, Cheung Yuen House, Chuk Yuen North Estate, unlawfully and maliciously administered to Chung Wai-fong a poison or other destructive or noxious thing, namely a mixture of heroin preparation so as thereby to endanger life of the said Chung Wai-fong. He pleaded not guilty to that charge and was tried before Judge Hawkes in the District Court and found guilty after trial. He was sentenced to imprisonment for four years and he now seeks leave to appeal against that sentence on the ground that it was manifestly too severe.

2. The deceased was a 17 year old girl. She was the girlfriend of Chan Kam-lung, also 17 years of age, and who was the son of the applicant. She was, at the time of her death, residing in the family premises of her boy friend. It seems that the premises are those of his grandfather and grandmother. As well as the girl, the grand parents, the applicant and his son resided therein. The deceased, the son and the applicant were all drug addicts. On the evening of 4th June, the three were taking drugs at those premises.

3. A description of what occurred comes from the cautioned statement of the applicant. He said:

The deceased was then taken to hospital but was dead or almost dead upon arrival. The post mortem report stated that the death was caused by adverse effects of multiple drugs.

4. The trial judge when sentencing said:

          "Taking into account the facts of this case, the reports and submissions made by Mr. Woon, the accused is convicted and is sentenced to 4 years' imprisonment."

5. Mr. Macrae, who appears for the applicant today, asks us to bear in mind that there was no intention to cause death or even harm on the part of the applicant. Mr. Macrae concedes that he was acting recklessly but submits that he was, when so doing, in a partially stupefied state. This may be true but what we must bear in mind, and what the judge doubtless had in mind, is that the applicant was a mature man and that the victim was a 17 year girl who was at the time living with the applicant's 17 year old son in the family home. It may well have been owned by the elderly grand parents but the applicant must have been a person of much more authority in the home than either of the teenagers. He was the parent of one and could properly be regarded as being in loco parentis of the other. It was he who obtained the drugs which formed part of the lethal cocktail. He did not, it is true, supply the heroin but he did inject it. His behaviour was, by any standards, appalling throughout. It is not excused by the fact that he was himself an addict and that he may, by reason of his addiction, have to some extent been robbed of the sense of responsibility that a normal parent would have. Indeed far from acting as a parent or responsible adult should have, he sanctioned the occupation by the two young people of a venue where they could take drugs, he obtained and gave to them part of the lethal cocktail which resulted in death and it was he who injected heroin into the arm of the victim. While the sentence of four years may be said to be at the higher end of the range we are satisfied that it was appropriate in the circumstances.

6. The application must be refused.