THE QUEEN v. YU SING CHUNG

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JUDGMENT

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Penlington, J.A.:

1. This is an application for appeal against both conviction and sentence. However Mr. McCoy, who appears for the applicant, indicated that he wished to abandon the appeal against conviction and leave was accordingly given.

2. The evidence in this case, which is relative to the purpose of considering the sentences, was that the applicant was seen by police officers on the 17th May, 1989 in an open area near the Sir Robert Black Clinic in San Po Kong. He was observed by one constable, who was using binoculars, and appeared to have sold something to a member of the public. That constable then alerted other police officers who arrested the applicant. Nearby a packet was found which contained 7.58 grammes of No. 4 heroin, the actual salts of esters of morphine being 6.5 grammes.

3. The applicant was then taken back to his home where a search was carried out and a further quantity of heroin, 22.79 grammes, was found. That contained 20.58 grammes of salts of esters of morphine. There was agreed evidence given by police officer that this amount of No. 4 heroin could be converted, in the first instance, that found at the scene, into 138 grammes of No. 3 heroin and the drugs in his home into 437 grammes of No. 3 heroin; that would give a total of 575 grammes. The District Judge, Bokhary D.J., after trial, imposed concurrent sentences of four-and-a-half years and six-and-a-half years, following the guidelines which were then in force in R. v. CHAN Chi Ming [1979] HKLR 491.

4. The applicant has previous convictions for drug related offences including possession for the purpose of unlawful trafficking but he has not yet been imprisoned. He seems to have benefited by a series of suspended sentences, even for that offence. However in mitigation he certainly cannot point to anything like a clear record.

5. It has been argued by Mr. McCoy that, considered separately and having done the notional conversion, the amount of No. 3 heroin in each case came within the "substantial" range as set out it Chan Chi Ming of 150 - 1000 grammes, calling for a sentence between five to eight years but at the lower end of that range. However, as the two offences were closely related, the sentences were correctly ordered to be concurrent. We do not agree. Here the drugs were found on the same evening, albeit in different places. Clearly the packets found in the applicant's home were to be later sold in the street and the proper approach, if concurrent sentences were to be passed, was to look at the total amount. On that basis the effective sentence of six-and-a-half years for a total of 575 grammes cannot be faulted at all. Furthermore there was actual evidence of selling and it is rather surprising that the applicant was not charged with the offence of trafficking as well as being in possession for that purpose.

6. We see no reason to interfere with the sentences and the application is dismissed.