HKSAR v. Luk Wai Kong

CACC000284/2000

CACC 284/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 284 OF 2000

(ON APPEAL FROM HCCC 126 OF 2000)

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Coram: Hon Stuart-Moore VP and Mayo VP in Court

Date of Hearing: 30 May 2001

Date of Judgment: 30 May 2001

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant pleaded guilty to trafficking in 6,009.19 grammes of a crystalline solid containing 5,913.97 grammes of ice and 27.32 grammes of a mixture containing 10.55 grammes of heroin before Luguar-Mawson J in the High Court. He was sentenced to 18 years imprisonment. He now seeks leave to appeal against this sentence.

2. There was very little in the facts which were in any way out of the ordinary. The applicant was approached by two police officers at Hung Hum KCR station who were acting on information received. He had just arrived in a train which had come from the border. According to the agreed facts, a man in Shenzhen had offered him $5,000 to bring the dangerous drugs from Shenzhen to a stated location in Tsimshatsui. On account of his difficult financial circumstances he had agreed to deliver the dangerous drugs. The Judge adopted a starting point of 27 years imprisonment and gave the applicant the full 1/3 discount for his plea thus arriving at the 18 years sentence which has been referred to.

3. There were effectively two grounds of appeal in the perfected grounds of appeal. The first was that the starting point of 27 years was manifestly excessive. What has to be borne in mind in this connection is that the total amount of dangerous drugs in question was approximately ten times the quantity of dangerous drugs referred to in R v Ching Kwok-hung [1991] 2 HKLR 125 where a sentence of 18 years imprisonment upwards is the recommended guideline.

4. Mr McGowan has drawn our attention to a number of cases involving large quantities of dangerous drugs. There are naturally discrepancies in the sentences imposed. It does however have to be appreciated that judges do have a discretion and it is only where there has been a substantial deviation from the norm that it is appropriate for the Court of Appeal to intervene.

5. In these circumstances it cannot be said that the starting point was manifestly excessive. It was somewhere at the upper end of appropriate sentences for an offence of this magnitude.

6. The second ground of appeal is that insufficient discount was given to the applicant having regard to the fact that he pleaded guilty at the earliest possible opportunity and co-operated with the authorities. The significant point to note here is that notwithstanding his co-operation he was unable to provide any useful information to the police leading to the arrest or prosecution of any associates. In these circumstances the Judge was correct in only granting the usual 1/3 discount to the applicant.

7. The sentence imposed was neither manifestly excessive nor wrong in principle and this application is dismissed.

Representation:

Mr David Leung, SGC of the Department of Justice, for the respondent

Mr James H.M. McGowan, instructed by Messrs Wong, Packwood & Company for the applicant