KAN WAI HO v. R.

IN THE COURT OF APPEAL

1993, No. 590
(Criminal)

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J U D G M E N T

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

1. This is an application for leave to appeal against sentence out of time.

2. The applicant Kan Wai-ho was convicted after trial in the District Court before His Honour Judge Kilgour on 11th September 1993 on one charge of possession of dangerous drugs contrary to s.8(1)(a) of the Dangerous Drugs Ordinance. The particulars of charge were that on 19th September 1992 at Shatin Pass Road near its junction with Ching Tak Street, Kowloon, he had in his possession 55.75 grammes of a mixture containing 27.67 grammes of salts of esters of morphine.

fact that the applicant was not drug dependent and had refused treatment at a Drug Addiction Treatment Centre, he did not resort to the possibility of treatment. The applicant was sentenced to two years nine months imprisonment.

3. The applicant did not make an application for leave to appeal against his sentence until 21st February this year, many months beyond the time limit permitted by law. The reason for this is explained in an affirmation put before us this morning to the effect that he had received legal advice in October last year after his conviction and he was advised by his solicitors that "it would be futile for me to appeal against sentence".

4. The applicant is represented this morning by Mr. Andrew Macrae who has put forward a number of reasons for saying why the judge erred in his approach to sentence. It is, we think, important to note that on an application of this kind it is not sufficient to show that, arguably, wrong advice had been given. The applicant must satisfy the court that the error is fundamental and goes to the root of the exercise of jurisdiction by the sentencing court.

5. The first point put forward by Mr. Macrae, perhaps the most cogent, is this: The judge was plainly wrong when he said that the maximum for the offence was eight years. The maximum for the offence under s.8(1)(a) of the Dangerous Drugs Ordinance, after its amendments in June 1992, is seven years' imprisonment and a fine of $1,000,000 upon indictment. Other criticisms have also been put forward; it is said that the judge's approach suggests that he was in effect sentencing the applicant for "unproven trafficking". This focuses upon the sentence in the Reasons for Sentence where the judge said:

"In the light of the fact that the Defendant was not apparently an addict the only sensible inference to be drawn is that the drugs were destined for others and would be trafficked."

6. Whilst the judge might have put the position more elegantly, we do not think that he was sentencing the applicant for "unproven trafficking". At the end of the day what must be borne in mind is whether the actual sentence imposed - two years nine months - is such as would warrant this court to interfere. If, ultimately, the sentence this court would have imposed, exercising its original jurisdiction after allowing an appeal, would have been substantially the same sentence as that imposed by the court below, to allow an extension of time for an appeal would be futile.

7. Looking then at this sentence of two years and nine months, we bear in mind that the amount in the applicant's possession in September 1992 was very considerable: the active ingredients amounted to 27.67 grammes. Sentencing courts are left with considerable discretion and are required to apply their experience in these matters.

8. In our judgment the sentence of two years nine months is not such as would warrant this court to interfere. For these reasons, the application for leave to appeal against sentence out of time must be dismissed.