THE QUEEN v. CHAN HING HUNG

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JUDGMENT

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Sir Derek Cons, VP; delivered the judgment of the Court:

1. Chan Hing Hung ("the Defendant") pleaded guilty to two charges of possession of dangerous drugs for the purpose of unlawful trafficking before Judge Evans sitting as a Deputy Judge in the High Court. The drugs involved were 4.663 kilogrammes of No. 3 heroin and 30.4 grammes of No. 4 heroin, which the judge was told would convert at the standard of purity then prevailing to 574 grammes of No. 3 heroin. He passed sentence on a constructive total of slightly more than 5.2 kilogrammes.

2. The heroin had been found on the 7th of March in a room to which the Defendant had the key and to which he had led the police officers who had arrested him at different premises. Together with the heroin were found an electronic balance, an ordinary balance, a sealing machine and a quantity of plastic bags.

3. That in brief is the substance of the summary of facts that was read out to the judge and admitted on the Defendant's behalf. The judge was also told that the Defendant had made a cautioned statement admitting the offences. The latter fact caused the judge to raise a query and the following exchange occurred between counsel and the judge:-

4. This factor was reflected in the judge's sentences.  He said:

and then imposed sentences of ten and five years respectively, ordering them to run concurrently. He added that he had made an allowance of three years for what he called the "pleas and co-operation" of the Defendant.   That means he took a starting point of 13 years, which is a little outside the Chan Chi Ming bracket of eight to twelve years for amounts of mixture of 1,000 kilogrammes or more, unless the circumstances were very serious. The Defendant now applies for leave to appeal against that sentence.

5. The main ground raised on his behalf is that the judge should not have taken into account the packaging aspect. The submission is that defence counsel, who, as we have seen in the passage just quoted, agreed to that course, exceeded her instructions.

6. In the course of this application we have accepted as additional evidence under Sec. 83V of the Criminal Procedure Ordinance, Cap. 221, an affidavit by the Defendant which exhibits a copy of the written instructions he had given to the Director of Legal Aid. These clearly deny any personal involvement in the packaging of drugs.

7. We have also admitted under the same section a letter from the counsel concerned. From that it appears that on the morning of the trial the Defendant agreed to the draft summary of facts which was intended to be put before the judge, and which included the allegation that the Defendant was involved in packaging. Counsel observes that on her own initiative, and in order to put the Defendant's case in a more favourable light, shef persuaded counsel for the Crown to withdraw that particular allegation, an initiative that was in the event was set at naught by the subsequent intervention of the judge. The letter also makes clear that, as one would expect, the exchange between the judge and counsel was interpreted to the Defendant, and that if at the time he did not specifically agree, at least he raised no objection. In those circumstances the judge was quite right to deal with the matter on the basis that the Defendant was engaged personally in the packaging and there is no reason for this Court to interfere.

8. The second ground of appeal is that the starting point of the judge was beyond the guidelines then pertaining by reason of Chan Chi Ming. As we mentioned earlier the guidelines set a bracket of eight and twelve years. But guidelines, as is often said, are not strait-jackets and this was serious conduct on the part of the Defendant. We cannot accept that the sentences are manifestly excessive.

9. For those reasons the application for leave to appeal against them is refused.