THE QUEEN v. CHAN CHUNG-OR

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. On 19th June 1985 in the Magistrate's Court CHAN Chung-or was sentenced to 2½ years imprisonment for an offence of possessing dangerous drugs for the purposes of unlawful trafficking; the date of the offence being 28th October 1984. On 5th August 1984 he again appeared before the Court, this time the Kowloon District Court, and was convicted on his own plea of trafficking in a dangerous drug and of resisting police officers in the due execution of their duties. The material date in that context was 23rd November 1984. Judge Soh sentenced him then to 5 years imprisonment for the trafficking offence and to 3 months concurrent with the 5 years for resisting the police officers but ordered that the overall sentence of 5 years should run consecutively to the period of 2½ years imprisonment to which we have already referred.

2. CHAN Chung-or now seeks leave to appeal to this Court against the sentence imposed on him by Judge Soh; a sentence, we should add, that was not imposed until some days later namely on 12th August.

3. The facts of the case involving the applicant show that he was acting effectively as a courier, this is an agreed fact; apparently having been paid, or having undertaken for a payment of, $500 to carry the drugs from one side of the harbour to another. The learned judge thought that a deterrent sentence was appropriate.

4. We have been referred to an earlier decision of this Court, WONG Sai-nang v. The Queen⁽¹⁾, holding that section 82(1) and (2)(a) applies to the situation where a judge is considering and aware of a sentence already passed by the District Court when imposing another and limits his jurisdiction in those circumstances to a sentence which, when combined with the earlier sentence, does not exceed a total of 7 years. So the Crown has conceded before us that, in any event, 6 months has to be subtracted from the sentence of 5 years.

5. Having considered the case of this young man of 21 we are prepared to be somewhat more generous and think that the appropriate course is to make the sentence of 5 years with 3 months concurrent itself concurrent with the earlier sentence of 2½ years so that CHAN Chung-or will serve a 5 year sentence, subject to remission, overall. Accordingly the application is allowed. We treat this as the hearing of the appeal and the sentences of Judge Soh are varied in that the periods of 5 years and 3 months concurrent will run concurrently with the existing sentence of 2½ years.

(1) 1980 H.K.L.R.242