HO CHEUK FAN v. THE QUEEN

CACC000635/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 635 OF 1975

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BETWEEN
HO CHEUK FAN Appellant
and
THE QUEEN Respondent

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 22nd October, 1975.

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JUDGMENT

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Huggins, J.:

1. Having dismissed the Appellant’s application for leave to appeal against her conviction for conspiracy to traffic in dangerous drugs,we come to here application for leave to appeal against the sentence of eight years’ imprisonment passed by the learned judge.

2. These are always difficult cases because, where the only evidence available shows a conspiracy and not the substantive offence, itis very difficult to know exactly what was the part to be played in the conspiracy by the individual. It is to be mentioned herethat this was a re-trial, after an appeal against conviction had been allowed on the ground of misdirection. The judge at the firsttrial passed a sentence on this Appellant of six years’ imprisonment and at the re-trial the judge passed a higher sentence of eightyears’ imprisonment. The first thing which stands out is that both judges were clearly of opinion that the Appellant was a substantialcontributor to this conspiracy. They heard the whole of the evidence and, although the Appellant did not herself on either occasiongive evidence, they were able to form their own opinion of what was the part she was to play. We find it very difficult to say thatthey must both have come to a wrong conclusion. What we do say, however, is that it was manifestly unfair that the Appellant shouldsuffer as a result of the re-trial and we think that she might well have a justifiable sense of grievance at suffering in this way.We are not able to say that the sentence of six years’ imprisonment passed on the first occasion was manifestly excessive. We haveborne in mind the age of this Appellant and the sentences passed on two co-accused: her adopted son, a lorry driver, aged some 33years was sentenced to eight years’ imprisonment and the other woman in the case was sentenced to eight years’ imprisonment. It maywell be that the judge in the court below was right in saying that there was no real reason for differentiating between them, butfor the reason which I have given we think that it is wrong that this Appellant should have to serve a longer sentence than thatwhich was passed on her at the first trial and for that reason we allow the appeal and reduce the sentence to one of six years’ imprisonment.

22nd October, 1975.

Representation: