R. v. CHAN CHUN HON

IN THE COURT OF APPEAL

1996, No. 232
(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. The applicant seeks leave to appeal against the total sentence of six years' imprisonment imposed upon him for trafficking and possession of dangerous drugs. He pleaded guilty to these offences at his trial.

2. The police during the course of an anti-narcotics operation mounted at the Kwai Chung Estate observed the applicant acting in what they thought was a suspicious manner.

3. They saw him go upstairs in a building. When he emerged from Room 332 Block 4 they stopped him and searched him. They found the small quantity of dangerous drugs referred to in the second count and a set of keys. The applicant said that the white powder was for his own consumption.

4. The police officers used the keys found on the applicant to open the door of Room 332. They encountered resistance from the inside. When they eventually gained entry they saw the applicant's co-accused at his trial.

5. He was seen to be holding a plastic bag. This was searched and a mixture of 203.49 grams containing 19.59 grams of heroin hydrochloride was found in the bag.

6. When passing sentence on the first count Judge Muttrie adopted six years as his starting point and gave the applicant a discount for his guilty plea. However he did not give him the full 1/3 discount. The reason he gave for this was the applicant's very bad record. This was not a valid reason to withhold the full discount. This being the case the sentence on the first count should be reduced by six months.

7. However the main ground of appeal in this case was the decision of the judge to pass a sentence of 18 months' imprisonment for the possession of dangerous drugs and make this consecutive to the trafficking count.

8. The reason given by the judge for this was that in his opinion there was no real connection between the two offences.

9. With respect we disagree. There was clearly a connection. In our view the sentence imposed should have been ordered to run concurrently. The result of this is that we grant leave for this application and treating it as the substantive appeal, reduce the total sentences imposed from six years to four years. The sentence of four years on the first count and 18 months on the second will be served concurrently.