YAN CHUNG FAT v. R.

IN THE COURT OF APPEAL

1993, No. 620
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court:

1. This is an application for leave to appeal against sentence, the application in relation to conviction having been abandoned by the applicant. He was convicted before Deputy Judge Wesley Wong and a jury on 11 October 1993 on one count of trafficking in a dangerous drug contrary to section 4(1)(a) of the Dangerous Drugs Ordinance. The charge on which he was convicted was that on 3 November 1992 at the pavement outside Park N'shop at Sai Wan Ho Street, he unlawfully trafficked in 698.67 grammes of a mixture containing 334.71 grammes of salts of esters of morphine. The deputy judge sentenced this applicant to imprisonment for 13? years.

2. The facts leading to the conviction very briefly were these. The applicant was found by Customs Officers at the pavement to be holding a handbag exhibit P2 and a brick-like object exhibit P4 wrapped in gift paper. When approached by these officers the applicant turned and tried to run away. Inside exhibit P2 were five polythene bags with suspected dangerous drugs and inside Exhibit P4 there were two bricks which were also suspected dangerous drugs. These substances were subsequently examined by the Government Chemist and turned out to be the dangerous drugs averred in the charge.

3. The applicant was about 40 years old at the time of his conviction and would have attracted a sentence of imprisonment of between 12 to 15 years in accordance with the guidelines laid down in the case of Lau Tak-ming [1990]2 HKLR-370. He was not entitled to much discount for his record as he has had four previous convictions for drug-related offences, the last of which was for possession in August 1992. However in none of those four previous cases was he sentenced to imprisonment. The applicant has made a plea to this court in relation to his personal circumstances. He has aged parents who depend upon him and he fears that if he was sentenced to a long term of imprisonment, by the time he is released, they would have passed away. These are not circumstances which would merit much discount, as they would have been the sort of matters any knowing offender should have anticipated.

4. One matter of concern to us however is this. In sentencing the applicant the deputy judge said this:

"You show no remorse. On the contrary, you called witnesses trying to mislead members of the jury. This sort of fantastic story can never be believed by ordinary members of the public. And to top it up, you attacked the integrity of the customs officers saying that they fabricated evidence against you."

5. Whilst obviously a trial judge must take into account the fact that the sentence was being imposed after trial, as opposed to a plea of guilty by the defendant, the conduct of the defence should have no part to play in relation to the sentencing exercise. Whether the witnesses called by the defence lied was not a matter relevant to sentence. In our judgment the judge erred in principle in approaching the matter of sentence. For this reason the application for leave to appeal against sentence should be allowed. The sentence is set aside and exercising our judgment in the circumstances of the present case we substitute a term of imprisonment of 12? years.