HKSAR v. FONG KIN CHEUNG

IN THE COURT OF APPEAL

1997, No. 11 & 237
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. For the sake of convenience these two applications will be dealt with together.

2. In both cases the Applicant was convicted of trafficking in dangerous drugs.

3. The circumstances of each case were similar. On both occasions police officers seeing the Applicant in the street acting in what they considered to be a suspicious manner, stopped and searched him and found dangerous drugs on his person.

4. In the appeal No. 11/1997 the dangerous drugs consisted of 196.61 grammes of a mixture containing 20.52 grammes of heroin hydrochloride. The Applicant gave evidence at his trial that the dangerous drugs were for his own consumption. However the trial Judge, Deputy Judge Jenkins, was satisfied that the prosecution had proved that he was trafficking in the dangerous drugs and convicted him of this and sentenced him to 5½ years' imprisonment.

5. Initially, the Applicant applied for leave to appeal against his conviction. He subsequently abandoned his appeal and applied for leave to appeal against his sentence out of time. So far as case of 11/1997 is concerned, this is the application we are presently seized with.

6. It is noteworthy that the only explanation which has been furnished for the Applicant being out of time is that he had learnt from other prisoners that after appealing unsuccessfully against the conviction it was possible to apply for leave to appeal against sentence.

7. This explanation overlooks the fact that it is made very clear on the forms which are completed by the Applicant that applications for leave to appeal against conviction and sentence can be pursued at the same time without any prejudice. The Applicant has not provided a satisfactory explanation for being out of time.

8. Turning to the application in the appeal of 237/1997 the amount of dangerous drugs involved was 277.71 grammes of a mixture containing 47.81 grammes of heroin hydrochloride.

9. It is to be observed that this offence was committed on 10th October 1996 when the Applicant was on bail in connection with case 11/1997. He pleaded guilty to the offence before Her Honour Judge Wong, and was sentenced to 4 1/2 years' imprisonment, one year of which was ordered to be served concurrently with the sentence imposed in case of 11/1997. It is against this sentence that the Applicant is seeking leave to appeal.

10. It would be appreciated from the Reasons for Sentences given by the Judge that she was fully aware of the overall situation and did take cognisance of the totality principal. The total sentence to be served by the Applicant is 9 years.

11. The two incidents in question were separate and distinct. As we have said the second offence occurred while the Applicant was on bail. That of itself is an aggravating circumstance.

12. The explanation given by counsel representing the Applicant at trial in 237/1997 was that the Applicant was indebted to his supplier and that he committed the offence under pressure from him to discharge his indebtedness.

13. He also called in aid his difficult family circumstances. He claims that as a consequence of his imprisonment, his wife has left him taking their two young sons and apparently it is her intention to institute divorce proceedings against him.

14. The explanation given in appeal No. 11/1997 for not making his application within the prescribed time was not a satisfactory one. In addition to this, the application would have had no prospect of success. It is accordingly dismissed.

15. So far as the application in appeal No. 237/1997 is concerned the sentence which was imposed was a lenient sentence and took sufficient account of the sentence he was serving.

16. This application is without merit and is dismissed.