THE QUEEN v. CHUI CHI-CHEONG

IN THE COURT OF APPEAL

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JUDGMENT

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1. On the 2nd of August of this year CHUI Chi-cheong pleaded guilty to a charge of possessing dangerous drugs for the purposes of unlawful trafficking and was sentenced by Garcia, J. to 7 years imprisonment.  In approaching sentence the learned judge was quite correct in comparing the offence of Chui with that of another man who had pleaded guilty to a different count in the same indictment in order to establish the relative culpability of the two.

2. The other man, YEUNG Chun-wah, after having been found guilty by a jury of trafficking in dangerous drugs was also sentenced to 7 years imprisonment.  As regards Yeung the quantity of drugs involved was 1,817 grammes of a mixture containing nearly 287 grammes of heroin. In the case of the applicant, Chui, the charge was that he had in his possession for the purposes of unlawful trafficking 300 grammes of a mixture containing nearly 44 grammes of heroin

3. At the time of his conviction Chui was aged 32 and had been earning some $2,000 per month ironing garments.  He had been arrested on 13th of March 1984; like Yeung outside the Ho Wong King Restaurant.  Premises at 51A Tam Kung Road which he had just began to occupy were then searched and in a room which he indicated was his a packet containing the mixture described in the charge to which he pleaded guilty was found. Substantial sums of money were also found both there and at other premises the keys to which were in his possession on arrest.  He confessed to having bought the drugs for $23,000 and that he intended to resell them for profit.

4. By reason of the amount of money found the learned judge concluded that this applicant had trafficked in drugs before.  This in our view, was an unfortunate and inappropriate conclusion to reach when Chui had no previous convictions in the drug context though he had an earlier conviction for robbery.  It would have been perfectly proper, we should add, for the learned judge to find, dealing with the plea in mitigation made before him, that the suggestion that this applicant urgently needed money because he had been discharged from his employment was wholly unsupportable.

5. In considering the offence of Chui in comparison with that of Yeung we consider that the offence of Yeung was substantially more grave.  We take into account the matters that have been urged upon us by Mr. Sedgwick on Chui's behalf including the plea of guilty and also the materials appearing in the Notice of Appeal. In the light of all these considerations we think that the relative culpability of Chui and Yeung would better be reflected by a sentence on the former of 5 rather than of 7 years imprison-ment.   Accordingly we allow the application for leave to appeal against sentence; treat this hearing as the hearing of the appeal and substitute a sentence of 5 years for one of 7.