THE QUEEN v. CHAN SHUN WING

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. On the 25th of July last year the Applicant, CHAN Shun Wing ("the Defendant") was engaged in delivering dangerous drugs by means of his motor scooter. He was arrested as he took a plastic bag off the carrier. A subsequent examination showed that the bag contained 910.39 grammes of a mixture which itself contained salts of esters of morphine. A further 150.82 grammes of a similar mixture, contained in some 18 packets, were found in a side compartment of the scooter. The Defendant immediately told the police that those 18 packets were payment for the delivery and were intended for his own consumption.

2. On the 21st of November last year he was arraigned before Judge Sharwood sitting as a Deputy Judge of the High Court. He then pleaded guilty to the indictment which alleged him to have been in possession, for the purpose of trafficking, of 1,061.21 grammes of the mixture, that is the total amount; in other words no distinction was made between the two lots, although they were dealt with separately in the Summary of Facts in the way which we have just outlined and counsel who then appeared for the Defendant agreed that the facts were correct.

3. The distinction was maintained by counsel in her plea in mitigation. Although she did not expressly assert that the 18 packets were in fact intended for the Defendant's own consumption, as opposed to his merely saying so to the police, that was a necessary implication from her explanation that the packets were sufficient to maintain the Defendant's addiction for over a month, thereby saving him $3,000 at least.

4. In passing sentence the judge observed:

"It has been held time and time the again in these courts that the quantity of the drug in the possession of the person is the most important single factor in determining a proper sentence. And indeed it is the quantity of the mixture which is of paramount importance."

He did not go to indicate what that figure was. No doubt had the guidelines laid down in CHAN Chi Ming in mind, for he took a starting point of eight years and reduced it for the plea of guilt and cooperation with the police. However eight years is common to the bracket for 150 - 1,000 grammes and that for 1,000 grammes and over.

5. Be that as it may, it is quite clear, and we accept, that we must have regard in this Court to the figure of 910 grammes when considering whether the sentence that was in fact passed below was or was not manifestly excessive.

6. In that respect we have regard to three things. First, the guidelines in CHAN Chi Ming which, as we have just mentioned, put this case into the bracket five to eight years.

7. Secondly, we have regard to the Defendant's plea of guilty. We have been referred to the earlier decision of this Court in R. v. HAN Man Fai, A.R. No. 7 of 1988, where we commented that judges do appear, subject to individual circumstances, to give discounts which are generally in the region of 25%. But we were careful in that case, as we have been in every other case, not to lay down any particular percentage as generally appropriate. The circumstances of each case must be taken into consideration. One of them, even though not accepted by counsel who now appears for the Defendant, is that the Defendant had no possibility of escaping conviction, which the judge referred to as his "being caught red-handed", perhaps not the most appropriate description of a man caught in possession of white powder. On the other hand, his admission of guilt was made at the first opportunity.

8. Finally we have regard to the Defendant's record. It is long, although the only recent conviction is for gambling. There has been no conviction for dangerous drugs since 1982. But the earlier record does include one for actual trafficking.

9. A sentence of seven years is not necessarily what each one of us would have passed had he been sitting at first instance, but we are all agreed, that taking into account all the circumstances we have just outlined, the sentence of seven years cannot be said to be manifestly excessive. The application for leave to appeal must therefore be dismissed.