HKSAR v. So Hung Leung

CACC000139/1999

CACC No. 139 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram: Nazareth V.-P., Stuart-Moore V.-P. and Keith J.A. in Court

Date of Hearing: 25 August 1999

Date of Delivery of Judgment: 25 August 1999

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J U D G M E N T

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Keith J.A. (giving the judgment of the Court):

Introduction

1. On 25th February 1999, the Applicant was sentenced by Deputy Judge Wesley Wong in the Court of First Instance to terms of imprisonment totalling 6 years and 4 months. He had pleaded guilty in the Magistracy to two charges of trafficking in heroin. He now applies for leave to appeal against those sentences.

The facts

2. The Applicant was stopped in the street by police officers. 15 small packets of what turned out on analysis to be a mixture containing 3.77 gms. of heroin were found on him. The Applicant's trafficking in that heroin was the subject of the first charge. The Applicant then took the police to the room in which he lived. Underneath a pillow on a mattress, the police found 140 small packets. They turned out on analysis to contain a mixture containing 103.33 gms. of heroin. The Applicant's trafficking in that heroin was the subject of the second charge.

3. The judge was told by the Applicant's counsel in mitigation that the Applicant had lost his job the previous year. He was unable to provide for his family. In a moment of weakness he had turned to drugs to which he had been addicted in the past. In return for the drugs he craved and for money to support his family, the Applicant agreed to act as a courier for a friend of his, Ah Hung. It will be necessary to return to Ah Hung again shortly.

The judge's approach

4. The tariffs for trafficking in heroin were laid down in Lau Tak Ming [1990] 2 HKLR 370. The tariff for trafficking in up to 10 gms. is 2 to 5 years' imprisonment. The tariff for trafficking in between 50 and 200 gms. is 8 to 12 years' imprisonment. The judge took 3 years' imprisonment and 9 1/2 years' imprisonment as his starting points on the two charges. He discounted those sentences by one-third to reflect the Applicant's pleas of guilty, and he ordered that they be served concurrently with each other. No complaint is made by Mr. John Halley for the Applicant about that approach.

Events since the Applicant's trial

5. However, one thing has occurred since the Applicant was sentenced. He gave a witness statement to the police implicating Ah Hung. A copy of that statement was sent to Ah Hung, and he subsequently pleaded guilty to the only offence with which he was charged, namely the same charge as the second charge which the Applicant faced. Does that warrant a further reduction in the Applicant's sentence? We think not. Ah Hung had himself been arrested following the Applicant's arrest. Almost 5 months before the Applicant was sentenced, Ah Hung had offered to plead guilty to the one charge which he faced on condition that the prosecution proceed against the Applicant on the first charge alone. That offer was rejected, but the point is that the Applicant elected after his trial to give a witness statement to the police implicating Ah Hung at a time when he knew that Ah Hung had been prepared, at any rate some months earlier, to plead guilty. As Mr. Ian McWalters for the Respondent submitted in his written submissions, "the circumstances in which this Applicant provided assistance suggest that he might have been using it as just another ploy to reduce his sentence, knowing that his 'promise' of assistance would not involve any betrayal of his friend as his friend was intending to plead guilty also." We agree.

Conclusion

6. For these reasons, this application for leave to appeal against sentence must be refused.

Representation:

Mr. John Halley, instructed by the Director of Legal Aid, for the Applicant.

Mr. Ian McWalters and Ms. Winnie Ho, of the Department of Justice, for the Respondent