FAN KIN-CHUEN v. THE QUEEN

CACC000499/1977

IN THE SUPREME COURT
Criminal Appeal
1977 No. 499

BETWEEN
FAN Kin-chuen Appellant
and
The Queen Respondent

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Coram: McMullin, J.

Date of Judgment: 31 May 1977

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JUDGMENT

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1. The appeal against conviction was dismissed in this case. Leave to appeal out of time against sentence was given, Mr. Marash forthe Crown not opposing. The appellant is 29 years of age and this is his first offence. The amount of the drugs seized is minimaland was found in two small plastic phials in a drawer in a room which, though no doubt nominally in his occupation, is not a roomwhere he regularly co-habits with his wife since they are living on terms of partial estrangement and it is not contested that henormally resides with his aunt. In the circumstances it is possible – although the defendant’s defence was total denial of possession- that the phials with the traces may have been there for a considerable time and may simply have been overlooked by the defendantand not disposed of. They may, that is to say, figure as something in his past for which, though he remains accountable, it wouldbe unfair to punish him on the basis of a contemporary misdeed. It is in taking this merciful view – and in view of clear recordand the needs of his family – that I suspended the sentence and not because I regard six months for possession of heroin as manifestlyexcessive or wrong in principle even for a first offender. Order: Sentence suspended for two years.

(A.M. McMullin)

Representation: