R. v. CHAN KA MING

IN THE COURT OF APPEAL

1997, No. 66

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant seeks leave to appeal against the sentence of 3 years 8 months' imprisonment imposed upon him for possession of dangerous drugs for the purpose of trafficking. The amount of dangerous drugs was 48.1 grams of a mixture containing 32.57 grams of salts of esters of morphine. The main point of this application is that the offence occurred in December 1989. The applicant was given bail and then absconded. He was not rearrested until November 1996. Mr Percy for the applicant submits that the Deputy Judge Barnes was wrong to adopt the guidelines in Lau Tak Ming as those guidelines were only laid down in 1990 which was subsequent to the date when the offence was committed. He argued that the judge should have adopted the guidelines in Chan Chi Ming [1979] HKLR 491 as modified by Cheng Yeung [1989] 2 HKLR 258 which involved a conversion factor for No. 4 heroin.

2. The applicant should have been sentenced to 4 years' imprisonment under the formula which was adopted in that case. It should however be noted that at the time when the applicant would have been tried had he not absconded it is unlikely that he would have received the full discount of
1/3 which the judge gave him for his guilty plea. It would however appear to be unduly severe not to let the applicant have his 1/3 discount.

3. It does seem clear that if the applicant had been sentenced at the appropriate time he would have received a shorter sentence. We consider that his sentence should be reduced by one year. Treating the application as the appeal we allow the appeal to this extent. The sentence is reduced to a sentence of 2 years 8 months.