THE QUEEN v. TANG YUK CHUN

IN THE COURT OF APPEAL

1987, No.88
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. On 27th February 1987 the applicant was convicted of possession of dangerous drugs for the purpose of unlawful trafficking and sentenced to imprisonment for seven years. She appealed against that sentence but we are told by Mr. Mullick who appears for her today that on the advice of the Legal Aid Department she withdrew that appeal and she now seeks leave to appeal out of time against conviction.

2. The appeal against conviction was lodged on 11th May 1987 some 3½ months out of time. We are told by Mr. Mullick that her counsel at the trial suggested to her that she appeal against conviction but that she was so disturbed by the length of the sentence imposed that she did not heed this advice but, upon her own initiative, decided to appeal only, against sentence. Mr. Mullick suggests that, when considering this application, we should take into account that she is a person of limited intelligence and that the impact of the sentence upon her mind was such as to prevent her from making a proper assessment as to what was in her own best interest.

3. Having heard all that has teen said we find no adequate explanation as to why this appeal was so manifestly out of time. That being so the application for leave to appeal out of time must be refused.

4. We now turn to consider the appeal against sentence. She appeals against the sentence of 7 years on the ground that it was too severe.

5. The trial judge when sentencing, bearing no doubt in mind the guidelines set out in CHAN Chi-ming, said that he considered the proper sentence for an offence of this kind in these circumstances would be nine years. We are satisfied that no issue could properly be taken with this assessment. The trial judge said that although there were some evidence to indicate that the applicant was actively involved in trafficking he would deal with her upon the basis that she was less involved than the man CHAN Tak-fai with whom she had been living and; who pleaded guilty to a similar offence involving the same dangerous drugs. Having taken this mitigating factor into consideration the judge fixed the sentence at 7 years.

6. The applicant now urges us, firstly, to bear in mind that she has never committed any criminal offence. This is, in fact, not correct as she does have one previous conviction for a drug offence but not for an offence of trafficking.

7. She urges further that the court give weight to the fact that CHAN Tak-fai, who had a number of previous convictions, was sentenced to the same sentence, i.e. 7 years. It is true that CHAN Tak-fai was sentenced to 7 years. The trial judge when sentencing Chan said that he was reducing the sentence from 9 years, which would otherwise have been appropriate, to 7 because at the very outset he pleaded guilty to the charge.

8. In the outcome each defendant was given credit of two years - Chan because he pleaded guilty and the present applicant because the trial judge was prepared to approach the matter upon the basis that she was not as involved in the transaction as Chan. There is nothing in this regard that would justify our interferring with the assessment of the trial judge.

9. The applicant finally urges that she is remorseful and points out that she has a son of 9 and a mother, who was partially cripple in a traffic accident, who now has to go out to work as the family are in financial difficulties. The trial judge was aware of the fact that she had a son of 9 but not, it would seem, of the other matters placed before us today. We are, however, satisfied that these are not matters to which we can properly give weight when making an assessment as to the propriety of the sentence. The trial judge made his assessment of sentence after considering the matters which it was proper for him to take into account. There is nothing which calls for interference by this Court.

10. The application is therefore refused.