R. v. Thapa Tekendra

CACC000022/1997

IN THE COURT OF APPEAL

1997, No. 22

(Criminal)

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Coram: Power, Ag. C.J., Nazareth, V.-P. & Stuart-Moore, J.

Date of hearing: 16 May 1997

Date of judgment: 16 May 1997

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J U D G M E N T

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Stuart-Moore J. (giving the judgment of the Court):

1. The Applicant was sentenced on 17th December, 1996, by Saied J. to 17 years' imprisonment in respect of trafficking in a few grammes short of 6 kgs of methamphetamine hydrochloride, commonly referred to as 'ice'. The Applicant pleaded guilty on 26th November 1996, at which time he was 21 years old.

2. The learned Judge required a background report which was perhaps because of the Applicant's slightly unusual circumstances. He is Nepalese by birth. His father is a retired British Army Captain of the Gurkha Regiment who used his savings to send the Applicant to Hong Kong some time ago. Sadly, the Applicant misused his opportunity to make a better life for himself and, as the background report demonstrates, he became addicted to ice which at one stage was costing him as much as $300 per day. His story has an all too familiar ring to it. He fell into the hands of the traffickers in this dreadful drug. Before long he did what he was directed to do by them in order to pay for his own habit.

3. There is only one point of substance which is advanced by Mr. Hoosen on the Applicant's behalf in this application for leave to appeal against the sentence imposed, although there are several other grounds which are raised. It is that the learned Judge erred in adopting a starting point of 30 years' imprisonment. As this court said in Attorney-General v. Ching Kwok-hung (1991) 2 HKLR. 125, this particular drug is to be taken very seriously and, in some ways, it is to be regarded as more deleterious to its abusers and to society in general than heroin.

4. That case laid down guidelines for the tariffs to be imposed. In cases involving 600 grammes or more , and this case is concerned with ten times that amount, the starting point for sentence following a contested trial is set at 18 years and upwards.

5. Silke, V.-P. at page 130G went on to say:

"By upwards we mean, as was indicated in Lau Tak-ming, beyond any cut-off sentence, but bearing in mind the dangers of a mathematical progression causing injustice. In coming to this tariff, we have in mind the maximum penalty is life imprisonment."

6. The sentencing judge was well aware of this as he made reference to it during the proceedings. He decided to take as his starting point a sentence of 30 years' imprisonment.

7. We have been referred to a number of cases amongst which are those where a sentencing bracket of about 25 or 26 years was found appropriate for quantities of drugs comparable to those relating to this case. In our view, the starting point was on the high side but within the range. However, it is the end result that matters rather than the way it is achieved and, provided no injustice has been done, the court will not interfere.

8. We have looked, apart from the cases to which counsel directed our attention, at The Queen v. Ho Chi-ming, No.447 of 1994 (unreported).Although this was a heroin case, there are close parallels with the present application. It was a plea of guilty to trafficking in 1.21 kgs. of salts of esters of morphine where Leong J. passed a sentence of 17 years' imprisonment, having taken 25 years as a starting point.

9. In giving the judgment of the court, Litton V.-P. pointed out that attitudes had hardened in the courts since the case of Lau Yau-yuen (1991) 2 HKLR 278. He continued by saying that there was nothing wrong in principle in adopting the starting point of 25 years, and that the full discount of one-third, in view of the Applicant's previous conviction, was generous.

10. The same result of 17 years' imprisonment was achieved in this case, albeit by a different route, and there is no doubting that this case in some respects is a more serious one. A full and generous discount was given to the Applicant even on the basis of a 25 year sentence. We have not overlooked that this Applicant was a foreigner, but he came to Hong Kong in order to live here. In a case to which we were referred this afternoon, Attorney General v. Pedro Nel Rojas (1994) 2 HKCLR 69, it was said that foreign national status will not affect sentence to any substantial degree.

11. We do not feel, when all the circumstances of this case are considered, that the sentence was either wrong in principle or manifestly excessive. Accordingly this application is dismissed.

Representation:

Mr. D.G. Saw, Q.C. & Mr. Y.W. Liu, C.C. for Crown.

Mr. A.A. Hoosen assigned by D.L.A. for the Applicant.