R. v. CHAN KA MING

CACC000066/1997

IN THE COURT OF APPEAL

1997, No. 66

(Criminal)

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BETWEEN
THE QUEEN Respondent
AND
CHAN KA MING Applicant

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Coram: Hon Power Ag. C.J., Bokhary and Mayo, JJ.A. in Court

Date of hearing: 1 May 1997

Date of judgment: 1 May 1997

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant seeks leave to appeal against the sentence of 3 years 8 months’ imprisonment imposed upon him for possession of dangerousdrugs for the purpose of trafficking. The amount of dangerous drugs was 48.1 grams of a mixture containing 32.57 grams of salts ofesters of morphine. The main point of this application is that the offence occurred in December 1989. The applicant was given bailand then absconded. He was not rearrested until November 1996. Mr Percy for the applicant submits that the Deputy Judge Barnes waswrong to adopt the guidelines in Lau Tak Ming as those guidelines were only laid down in 1990 which was subsequent to the date when the offence was committed. He argued that thejudge should have adopted the guidelines in Chan Chi Ming [1979] HKLR 491 as modified by Cheng Yeung [1989] 2 HKLR 258 which involved a conversion factor for No. 4 heroin.

2. The applicant should have been sentenced to 4 years’ imprisonment under the formula which was adopted in that case. It should howeverbe noted that at the time when the applicant would have been tried had he not absconded it is unlikely that he would have receivedthe full discount of
1/3 which the judge gave him for his guilty plea. It would however appear to be unduly severe not to let the applicant have his1/3 discount.

3. It does seem clear that if the applicant had been sentenced at the appropriate time he would have received a shorter sentence. Weconsider that his sentence should be reduced by one year. Treating the application as the appeal we allow the appeal to this extent.The sentence is reduced to a sentence of 2 years 8 months.

(N.P. Power)
Ag. Chief Justice
(K. Bokhary)
Justice of Appeal
(Simon Mayo)
Justice of Appeal

Representation:

Mr AA Bruce QC and Miss Lily Ho, SCC for Crown Prosecutor

Mr Duncan C.H. Percy (DLA) for Applicant