HKSAR v. Lo Hon

CACC000173/2001

CACC 173/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 173 OF 2001

(ON APPEAL FROM HCCC NO. 42 OF 2001)

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Coram: Hon Stuart-Moore VP and Stock JA in Court

Date of Hearing: 11 October 2001

Date of Judgment: 11 October 2001

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1On the afternoon of the 24 October 2000, police officers were keeping observation on a flat in the Wah On Building in Tong Mei Road.

2The applicant emerged, and he was escorted back into the premises. He resided in or was using, a room there and, with keys seized from him, the police officers entered the room, and the applicant told them that two 'units', as he put it, referring to drugs, were left in the water closet and in a tissue box in the toilet.

3In that toilet, a white plastic bag containing a slab of suspected dangerous drugs was found on top of the cistern. Inside a tissue box on a shelf above the washbasin were 13 transparent plastic bags containing suspected dangerous drugs. Also found was an electronic scale, three packets of transparent plastic bags, and adhesive tape.

4The suspected dangerous drugs were in due course examined by the Government Chemist, and analysed as containing 614.59 grammes of heroin hydrochloride.

5When subsequently interviewed, the applicant stated that he had met a former co-worker who had suggested that the applicant worked for him, and by arrangement they met, and the applicant was given money to rent premises, and he in fact rented the premises in the Wah On Building.

6On 21 October 2000, and on the instructions of his friend, the applicant collected two slabs of heroin from a male at Tai Wo Railway Station, which he then took back to his premises, where he received a telephone call from the friend telling him to break up one of the slabs and, after weighing it, to put the heroin into 13 packets. The scales used were provided by the friend. He, the applicant, then went to Shenzhen. On the morning of 24 October 2000, while in Shenzhen, he received a telephone call from his friend telling him to go back to Hong Kong and wait for a call in order to hand over the heroin. He was promised a reward of $12,000. When, however, he arrived at the premises, he was arrested by the police. That was the applicant's account.

7The heroin seized had a retail value of $306,764.79. The applicant was committed for sentence to the High Court, upon his plea of guilty to a charge of trafficking in 614.59 grammes of heroin. He confirmed that plea before Deputy Judge Whaley on 24 April 2001. He was sentenced to a term of 13 years and 4 months' imprisonment. This is his application for leave to appeal against sentence.

8The applicant is aged 52 years, and has previous convictions, although they are almost 20 years old and of a different type and order altogether, so that they can be ignored. The judge took a starting point of 20 years' imprisonment and, given the fact of the defendant's plea, deducted one-third, and sentenced the applicant to a term of 13 years and 4 months' imprisonment.

9The applicant now appears in person, and complains about that sentence. He says that the plea of guilty at the first opportunity was a matter not taken into account by the judge, and he also says that the sentence was in any event too severe.

10As to the first complaint, whilst there is no express mention in the transcript of the proceedings in the court below of the fact that the applicant pleaded guilty at the committal stage, it is clear from the charge sheet, which the judge must have had, that this was a committal for sentence. In any event, the sentence was well within the permitted range taking into account the plea of guilty, and given the quantity of drugs involved.

11The applicant has told us today that he has heard from other inmates of other cases involving similar or slightly larger quantities of drugs, where those convicted have received sentences slightly below those imposed on this applicant. We know nothing of the facts of those cases. Each case is judged on its own merits. On the merits of this case the sentence, was neither manifestly excessive nor wrong in principle. Accordingly this application for leave to appeal against sentence is dismissed.

Representation:

Applicant in person

Ms Winsome Chan, SGC of the Department of Justice for the Respondent