HKSAR v. Lam Kin Lun

CACC000294/1997

IN THE COURT OF APPEAL

1997, No.294
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Stuart-Moore, J.

Date of hearing: 5 November 1997

Date of judgment: 5 November 1997

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of trafficking in a dangerous drug, it being alleged that on 10th February 1996, at Canton Road near Arran Street, Mongkok, he unlawfully trafficked in a drug, namely 82.50 grammes of a mixture containing 41.87 grammes of heroin hydrochloride. Initially he absconded but was later arrested and pleaded guilty to that charge on his first appearance in court after arrest and was sentenced to six years' imprisonment. It is against that sentence that he now seeks leave to appeal.

2. The drugs were found as a result of a stop and search exercise. Initially the applicant said that they were for his own consumption but at trial admitted that they were for the purpose of unlawful trafficking. It is not surprising that he came to make such an admission as the street value of those drugs were $86,950.

3. His Honour Judge Gill said when sentencing in the District Court:

"The offence of trafficking in dangerous drugs is one of the most heinous in Hong Kong. It carries a maximum sentence of a fine of $5 million and life imprisonment. Where the dangerous drugs in question are heroin, there is a guideline sentence imposed by the Court of Appeal in the case of R. v. Lau Tak Ming (1990) 2 HKLR 370, where a sentencing court should adopt as a starting point a term of imprisonment which bears to the quantity of narcotics the subject of the charge. Where the narcotic content weighs between 10 grammes and 50 grammes, the appropriate starting point is a term of imprisonment of between 5 and 8 years, the particular starting point to depend on matters peculiar to the case before the court. One such additional factor is the defendant's previous involvement in dangerous drugs, and in this case the defendant has a long history of involvement as revealed by his criminal record which includes many drug or drug-related convictions, two of which are for trafficking."

4. It might be suggested that this passage indicates that the trial judge was increasing the starting point because of the bad record of the applicant. Notwithstanding the words of Sir Denys Roberts in R. v. Li Ming, Criminal Appeal No.480 of 1985, we are satisfied that this would not have been a proper approach. In the outcome, however, the judge did not, it seems clear, extend the starting point because of the applicant's bad record. He took a starting point of seven years which was squarely within the guidelines when applied upon the basis of the quantity involved.

5. The complaint today is not of any impropriety in that regard but of a failure to give a one-third discount for plea. The trial judge said:

"I have had the benefit of a plea in mitigation to the extent possible for this offender and there is nothing in his background which warrants any reduction from that starting point."

We agree entirely with that observation. He went on to say:

"However, he has pleaded guilty and is thus entitled to a discount, but one smaller than otherwise might have been available to him because of his failure to answer bail following his arrest for this offence, which necessitated a warrant for arrest issuing and his re-arrest."

The judge was entitled to take into account that the applicant absconded and to give less than the customary one-third discount. A one-third discount would have been two years and five months. The judge allowed a discount of 12 months. The only question for us is whether that discount was, in all the circumstances, an adequate one. We are particularly impressed by the fact that the applicant, although he absconded, did, after arrest indicate, on his first appearance before a court, that he had intended to plead guilty. We are satisfied that undue weight was given to the fact that the applicant absconded. He was certainly not entitled to a full discount but we consider that a discount of two years would have been proper and that the judge's failure to give that discount resulted in a manifestly excessive sentence.

6. The application for leave to appeal against sentence is allowed. The hearing of the application is treated as the hearing of the appeal and the sentence is varied from one of six years to one of five years.

Representation:

Mr. Liu Yuen-ming, S.G.C. (D.P.P.) for the Respondent.

Mr. Duncan Percy assigned by D.L.A. for the Applicant.