HKSAR v. Siu Chi Hung

CACC000136/1998

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No136
(Criminal)

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Coram: Hon. Power, V.-P., and Stuart-Moore, J.A.

Date of Hearing: 16 September 1998

Date of Judgment: 16 September 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter pleaded guilty to one count of trafficking in a dangerous drug. The count read that he, on 9th May 1997, on the 4th floor of No.25 Fuk Tsun Street, Mongkok, unlawfully trafficked in a dangerous drug, namely 91.37 grammes of crystalline solid containing 87.61 grammes of methamphetamine hydrochloride. He was, after plea, sentence by Deputy Judge Jackson to imprisonment for 5 years. He now seeks leave to appeal against that sentence.

2. The facts were that at 1:16 p.m. on 9th May 1997, a police officer who was on surveillance duty heard the sound of a lift arriving at the 4th floor of 25 Fuk Tsun Street and heard the iron grille being opened. The officer then came out and saw the applicant standing outside the flat, the iron grille was then opened and the applicant was carrying a plastic bag and had a bunch of three keys, one of which was stuck into the key hole of the wooden door. The officer stopped the applicant and revealed his police identity and then took him into the flat. A female was found sleeping in the living room.

3. Shortly after, the owner of the flat and the mother of the woman who was found sleeping arrived. The arresting officer said he was going to search the applicant who appeared to be frightened and he did so finding a plastic bag in the applicant's left hand, in which were 19 plastic bags containing suspected "ice". The officer immediately cautioned the applicant who replied that he understood. He asked the applicant what were the contents of the 19 plastic bags and the applicant said they were ice. He further asked the applicant why he had so much ice and the applicant said, "Someone has just given the stuff to me for storage in my place." The flat was then searched and a number of things were found which are connected with dangerous drugs. There were bottles containing liquid, string, plastic straws and pieces of tinfoil. The applicant was asked what those items were for and he said, "I use them for consuming ice". The police found another plastic bag which contained four tubes of white paper which contained suspected cannabis, and the applicant was asked what they were and said they are cannabis and he admitted that that cannabis belonged to him.

4. He was also charged with possession of that cannabis and he was sentenced to 7 days' imprisonment on that charge concurrent with the 5 years on the charge of trafficking.

5. The trial judge, when sentencing, said:

"The appropriate starting point for sentence in respect of the trafficking offence, bearing in mind as I do the part played by the defendant, and the guidelines set out in the judgment of R. v. Ching Kwong-hung, Application for review No.15/90, is ten year's imprisonment. I give the defendant full credit for his pleas of guilty and I reduce his sentence accordingly by one-third. That however is not the end of the matter.

The prosecution has confirmed that the defendant, following his arrest, co-operated fully with the police. As Miss Li, who appears for the defendant, says, she having said all that possibly could be said on his behalf - at considerable risk to himself, to his girlfriend, and to his girlfriend's mother. I've given careful consideration to the value of that co-operation with the police, and indeed of its value to the public."

6. He went on to look at cases which were cited to him but, having considered them, said that in his view the applicant's cooperation "does not fall within the same category" as the cooperation in those cases but that

"his co-operation must, nonetheless attract a generous discount in sentence.

Having weighed all matters before me it is my view that the appropriate sentence in this case is as follows:

For the offence of trafficking, that's the first count, the defendant will go to prison for a term of five years.

For the offence of the possession of the cannabis, that is the second count, he'll go to prison for a term of seven days. Those sentences to be served concurrently."

7. The applicant has placed a number of written grounds before us. One of his principal contentions is that he was only assisting a friend and that the trial judge did not fully take into account the mitigating circumstances. It may be, as he says, that he was only assisting friend but that did not, in any way, mean that he was not involved in trafficking in dangerous drugs. Indeed, his involvement was more than simply carrying the drugs as he admitted: "Someone has just given the stuff to me for storage in my place".

8. He also states that he is being intimidated in prison by Chan, i.e. the man about whom he gave information to the police, and by his associates. He refers to Chan's trial and the conviction which he says resulted from his information.

9. The applicant goes on to refer to the trial of an Indian university student who received a sentence of 5 years for helping a friend which, it seems, was reduced from a starting point of 10 years. The applicant points out that that reduction was given without the student ever having given any assistance to the police. We are not fully acquainted with the facts of that matter, but are satisfied, when we look at the facts of the matter before us, that the judge took a proper starting point, that he took into account all relevant mitigating factors and that 50% was a proper discount in the circumstances. Giving full weight to the assistance which he has given to the police, it would not be proper to give a greater discount than the very substantial 50% that he received.

10. In all of the circumstances, the application is refused.

Representation:

Mr. Patrick W.S. Cheung (D.P.P.) for the Respondent.

Applicant in person.