THE QUEEN v. CHAN YUET HUNG(D1) AND ANOTHER

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JUDGMENT

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Yang, J.A.:

1. This is an application for leave to appeal against sentence. The facts are these. On the 12th September 1985 a party of police were keeping observation in the area of Lung Sum Road and Jockey Club Road in Sheung Shui. They intercepted a car of which the 2nd Applicant was the driver and his co-defendant, the 3rd Defendant, a passenger. A search of the car revealed 738.5 grammes of raw opium. Both defendants were then taken to a police station for enquiries.

2. After interrogating the. 2nd Applicant and the 3rd Defendant the police went to the 1st Applicant's apartment. He at first made no response to the police enquiries, but when a body search was conducted a bundle of keys was discovered. A search of the premises commenced and the 1st Applicant then directed the police to the bedroom. Behind the headboard of a bed, 25 kilogrammes of opium was discovered. Also found in the premises were numerous plastic bags, nylon string and weighing scales. There was every indication that the 1st Applicant was importing and distributing raw opium on a substantial scale.

3. It was submitted on behalf. of the 1st Applicant that, as compared with sentences passed in other cases involving opium, the sentence of 5 years imposed upon the 1st Applicant is too high. It was stressed that he pleaded guilty and was' cooperative with the police. It was further argued that he had a clear record.

4. Taking into consideration the facts of the case and the authorities that have been cited to us, we are of the view that the 5 years imposed is within the acceptable range of sentences, though it may appear to be slightly on the high side within that range. We therefore do not propose to interfere with the sentence. As far as the 2nd Applicant is concerned, the quantity of drugs found in his possession is much smaller than that found in the possession of the let Applicant. Moreover, counsel for the 2nd Applicant submitted that it was not open to the judge to take into consideration for the purpose of sentence admissions made by the applicant in a confession that had been placed before the jury at the trial in which he said he had made deliveries of opium for the let Applicant on previous occasions. He pointed out that a charge of conspiracy against both applicants has not been proceeded with. However, counsel in the Court below had submitted to the judge that the applicant had received little reward for his participation. In doing so he drew the judge's attention to the very admission in the confession which he now complains that the judge should not have taken into consideration.

5. The authorities on this are by no means clear. In Hutchison v. The Queen [1972] 56 C.A.R. 307, the appellant had pleaded guilty to one count of incest based on the contention that one act of incest only had taken place. Notwithstanding this the judge had heard evidence from both the appellant and his daughter with a view to determining whether there was any truth in a statement made by the daughter that intercourse had taken place on a number of occasions. It is not surprising therefore that-the Court of Appeal held that evidence of the other acts should not have been considered.In Russen [1981] 3 CAR(S) 134 the Court of Appeal held that it was entirely acceptable for a sentencing judge to look at an accused person's statement to see if the offence with which he had been charged was an isolated incident or not, and take that into account in sentencing.

6. Barely less than two months later in Connor [1981] 3 CAR(S) 225 a differently constituted Court of Appeal, but one in which was present one of the judges who had been a member of the Court in Russen, took the view that the sentencing judge had wrongly taken into account statements made by the appellant in which he had admitted dishonestly receiving a great deal more property than was described in the count to which he had pleaded guilty. In allowing the appeal against sentence their Lordships observed that a court should not sentence an offender for crimes of which he had neither been convicted or charged. However, in Connor counsel for the defendant had withdrawn at the hearing admissions made by the defendant as to his commission of these other crimes. This factor clearly distinguishes Connor from Russen. Connor does not refer to Russen and we think that had there been any intention to qualify or disapprove of anything said in Russen the Court would have expressly said so, particularly since one of its members had been a member of the court in Russen.

7. In R. v. Ayensu [1982] 4 CAR(S) 248, the Court of Appeal said that it was the duty of a court to pass sentence on the facts of the particular offence and that it was not right, where pleas of guilty had been accepted by the prosecution on the basis that each apellant's plea represented the whole of his admissions, and the court having allowed those pleas to be accepted, for it to take into other matters which were hotly in dispute. This case is therefore clearly distinguishable both from Russen and the instant case.

8. We are of the opinion that in order to view a defendant's culpability in its true light a sentencing court is entitled to have regard not only to his previous convictions but do any evidence directly relevant to the gravity of the offence charged. Frequently, a court is urged to take into account an offender's unblemished past as a mitigating factor. Where, however, he has not simply succumbed to the temptation to commit one criminal act but has demonstrated a frequent disregard for the law, he may well disentitle himself to the whole or part of any reduction of sentence to which he might otherwise have been entitled on account of other mitigating factors (R. v. Lam Chun Yan, Crim. App. 622/85).

9. The 2nd Applicant was unable to say in mitigation that the offence of which he had been convicted after a contested trial was an isolated offence. Moreover, the trial judge had ample ground for saying that he had played an active role in its commission, albeit as a courier.

10. We accept, however, that the quantity of the drug found in the possession of this applicant was much smaller than that found in the possession of the 1st Applicant. In the circumstances, therefore we are of the view that although an immediate custodial sentence is called for, the sentence of three years is excessive. We allow the application for leave to appeal and treat the hearing of the application as the hearing of the appeal. We set aside the sentence of three years imprisonment and substitute therefor one of two years' imprisonment.

Penlington, J.:

11. I would only add that a very common ground which is argued before this Court on sentence is that an adequate allowance has not been made for a plea of guilty. It has been said previously that it is helpful that a judge when imposing a substantial sentence of imprisonment, following a plea of guilty, should state what sentence he would have passed following trial and what specific allowance is being made for the plea of guilty. That makes it easier to see if a proper allowance has been made and we have been told on other occasions it is also of great benefit to members of the bar when advising clients as to plea. It may reduce the number of trials where the evidence is overwhelming but an accused person persists in a plea of not guilty.