HKSAR v. Lam Wai Ip
Read the full judgment text of CACC 214/1997 on BabelCite. This Court of Appeal judgment was delivered on 12 September 1997 before Power, Ag. Chief Judge, H.C., Mayo, J.A. and Leong, J..
Criminal law – dangerous drugs – trafficking – simple possession – methamphetamine hydrochloride ('ice') – heroin – midazolam – sentencing – starting point – discount for guilty plea – appeal against sentence – manifest excess – Court of Appeal will keep such offences under constant review – whether original sentence of three years and four months for simple possession of 20.80 grammes of a crystalline solid containing 19.68 grammes of methamphetamine hydrochloride and 16.31 grammes of a mixture containing heroin was manifestly excessive – applicant pleaded guilty to simple possession, having originally faced two counts of trafficking – starting point for simple possession of ice should be three years, not five as in Wu Chi Wai for a larger quantity – one-third customary discount for guilty plea applied – sentence varied to two years – application treated as hearing of appeal and allowed – Chan Shing-hing No.725 of 1996 followed.
Legal issues: Appropriate starting point and discount for simple possession of dangerous drugs including 'ice'
Outcome: Application for leave to appeal treated as the hearing of the appeal and allowed; sentence varied from three years and four months to two years' imprisonment.
Cited by 8 cases
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CACC000214/1997 IN THE COURT OF APPEAL 1997, No.214 _______________
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Date of hearing: 12 September 1997 Date of judgment: 12 September 1997 _______________ J U D G M E N T _______________ Power, Ag. Chief Judge, H.C. (giving the judgment of the Court): 1. The applicant in this matter faced two counts of trafficking in a dangerous drug. In the first it was alleged that he, on 24th December 1995, in Room 414 Block A, 20-22 Ming On Street, Hung Hom, trafficked in 16.31 grammes of a mixture containing 1.98 grammes of heroin hydrochloride and 8 tablets containing 0.14 gramme of midazolam maleate, being a salt of midazolam. In the second count it was alleged that at the same time and place he trafficked in 20.80 grammes of a crystalline solid containing 19.68 grammes of methamphetamine hydrochloride. He pleaded guilty before Judge Jackson to simple possession and was ordered to be imprisoned for three years and four months in all. He now seeks leave to appeal against that sentence on the ground that it was manifestly excessive. 2. He was perhaps fortunate to have had his plea to simple possession accepted but we cannot go behind that plea in this court. 3. The sentence was passed on him on 8th August 1996. That is important as we will later turn to consider a decision delivered after that date. In recent times the Court of Appeal has had to grapple with the problem of simple possession of more than minimal quantities and to consider the latent risk factor which must be taken into account when dealing with such offences. This factor is of particular importance when dealing with 'ice' which is a recreational drug fashionable for use on social occasions. We are mindful also that the often immature users of that drug have no inkling of the horrific effects which it can have. Guidance, we think, can best be obtained from the recent case of Chan Shing-hing No.725 of 1996, the decision in which was delivered on 9th April 1997, where the court was dealing with simple possession of a quantity of 29.86 grammes of ice. Liu J.A. delivering the judgment of the court said:
That clearly indicates an appropriate starting point for offences of this kind. It is one which we are persuaded it would be proper to adopt. That being so the starting point in the present case was too high. Three years would have been an appropriate starting point which must be reduced by one year being the one-third discount which is now customarily given for a plea. 4. The application is allowed. Its hearing is treated as the hearing of the appeal and the sentence is varied to one of two years. 5. Before leaving this matter we think it appropriate to say that this court will keep offences of this kind under constant review. Circumstances in the future might well warrant a more serious view being taken of the latent risk factor, particularly in cases which involve the substance 'ice'.
Representation: Mr. A.A. Bruce, S.C. & Mr. Daryanani (D.P.P.) for the Respondent. Mr. James Kynoch assigned by D.L.A. for the Applicant. |