HKSAR v. Sherpa Chhewan Gyabu
Read the full judgment text of CACC 220/1998 on BabelCite. This Court of Appeal judgment was delivered on 16 September 1998 before Power, V.-P. and Stuart-Moore, J.A..
Criminal law – drug trafficking – cannabis resin – sentencing – appeal against sentence – whether sentencing judge adopted correct starting point – guidelines in Attorney General v Tuen Shui-ming & another, Application for Review No.12 of 1994 – Applicant pleaded guilty to trafficking approximately 13 kgs of cannabis resin worth about HK$780,000 at the New Customs Arrival Hall at Lo Wu Control Point – District Court judge imposed 4 years' imprisonment based on a 6-year starting point less one-third for guilty plea – Applicant applied for leave to appeal against sentence – Court of Appeal held that while the Tuen guidelines were correctly applied, a 5-year starting point was more appropriate than 6 years for over 9 kgs of cannabis resin – leave to appeal granted and hearing treated as the appeal – appeal allowed – sentence reduced to 3 years and 4 months (5 years less one-third).
Legal issues: Appropriate starting point for sentencing for trafficking in approximately 13 kgs of cannabis resin
Outcome: Leave to appeal granted; appeal allowed; sentence reduced from 4 years to 3 years and 4 months
Cited by 7 cases
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CACC000220/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL 1998, No.220
------------------------------- Coram: Power, V.-P. and Stuart-Moore, J.A. Date of Hearing: 16 September 1998 Date of Judgment: 16 September 1998 ---------------------- J U D G M E N T ---------------------- Stuart-Moore, J.A. (giving the judgment of the Court): 1. The Applicant appeared before Deputy Judge Geiser in the District Court on 31st March 1998 facing a charge of trafficking in approximately 13 kgs. of cannabis resin worth about $780,000. The offence was committed at the New Customs Arrival Hall at Lo Wu Control Point. He pleaded guilty and was sentenced to 4 years' imprisonment. The Applicant now seeks leave to appeal against his sentence. 2. In his original Grounds of Appeal, the Applicant pointed out that he had pleaded guilty and not wasted time or costs and had committed no previous criminal offence. 3. In his further grounds contained in a letter dated 29th July 1998, he sets out a number of points that have no materiality to this application. Having said that, the Applicant should understand that other similar cases reported in the newspapers were decided on their own facts. We have to look at the facts of this case to decide whether the judge was wrong in passing the sentence that he considered appropriate. 4. There was one point made by the Applicant in his letter which we have given considerable thought to, and this is whether the judge took the correct starting point. 5. The judge, when he passed sentence, said:
6. The judge went on to say that this indicated to him that a six-year starting point was justified. He then deducted one-third to take into account the Applicant's plea of guilty and other mitigation. 7. The judge was right to take the Tuen case as providing guidelines for sentence in this kind of offence. However, we consider that whilst a mathematical progression is not always appropriate, the guidelines in Tuen indicate that a five-year starting point would have been more appropriate. To this extent we find substance in what the Applicant has put before us. 8. Accordingly we propose to grant leave to appeal. We shall treat this hearing as the appeal and, allowing the appeal, reduce the sentence to one of 3 years and 4 months by taking 5 years as the staring point and reducing that by one-third. To this extent the appeal is allowed.
Representation: Mr. Patrick W.S. Cheung for D.P.P./Respondent Applicant in person. |