THE QUEEN v. CHEUNG YUK SING

----------------------------

-----------------

JUDGMENT

-----------------

Clough, J.A.:

1. The applicant applies for leave to appeal against the sentence of 3 years imprisonment imposed on him upon conviction by his Honour Judge Cameron, after trial in the District Court, of the offence of possession of a dangerous drug for the purpose of unlawful trafficking contrary to section 7 of the Dangerous Drugs Ordinance (Cap. 134).

2. In his written notice of application he says that the judge said he believed that the drug did not belong to the applicant and that the applicant did not know the offence was so serious. The applicant also says in his notice that he knew nothing before the incident, that he did not accept any money and just wanted to help others. He says that if he had accepted money he would willingly have accepted the punishment imposed on him. He makes the point that this was his first offence of this nature and that he was "ignorant" at the time. Today he has made similar observations to this court. He told the court that had he known the serious consequences of this matter he would have deserved punishment. He had been committing offences since 1966 and realised the consequences of his crimes. He asked the court to consider if he would commit (I apprehend him to imply "deliberately") such a serious offence as this for $150. He asked for leniency.

3. The offence was committed on the 13th July 1990. On the 29th May 1990 The Queen v. Lau Tak Ming [1990]2 HKLR 370 had been decided. Having regarding to the fact that the mixture of drug in this case (amounting to 28.01 grammes) contained as much as 16.94 grammes of salts of esters of  morphine, the offence falls within band (b) under the Lau Tak Ming tariff and qualifies for a minimum sentence of 5 years imprisonment.

4. In imposing a sentence of only 3 years imprisonment the judge, as he acknowledged in his Reasons for Sentence, was adopting a lenient view and departing from the suggested tariff for the narcotic content of the drug seized. He took into account that although the applicant had 12 convictions between 1966 and 1989 (7 of them drug related but not trafficking offences) he had only once, in 1982, received an immediate custodial sentence and that for only 1 1/2 months.

5. The other matter that weighed with the judge was that, as the applicant has claimed in his notice and said again today, the applicant did not seem to realise that by carrying the drug in the way he had done he was committing a trafficking offence. The judge had the impression that the applicant considered that he had done nothing more than be in simple possession.

6. Clearly, as is the case, the judge nevertheless had no doubt but that the applicant had committed the offence charged. Moreover the judge had observed in his Reasons for. Verdict that he was prepared to accept the applicant's evidence that he had agreed to take the drug in question to the Methadone Clinic for & man called Keung Chai because the latter had given the applicant $500 (and not $150 as recorded in the applicant's statement and mentioned again by him today).

7. On his own evidence, therefore, the applicant had committed the offence to oblige a friend who had given him money. Under the circumstances the applicant, who was convicted after a trial and not on his own plea, received a very compassionate and generous discount from the guideline sentence of 5 years for the serious offence committed by him. We do not consider that any grounds can be advanced for reducing his sentence.

8. We are further of the opinion that both these applications (the application for leave to appeal against conviction has been abandoned) are wholly devoid of merit. We consider that we should direct pursuant to section 83W of the Criminal Procedure Ordinance (Cap. 221) that 60 days of the time during which the appellant has been in custody pending the determination of his applications should not be reckoned as part of the term of the sentence to which he is subject.