R. v. Yeung Man Ki and Another

CACC000030/1995

IN THE COURT OF APPEAL

1995, No. 30
(Criminal)

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Coram: Hon. Power, Acting C.J., Bokhary and Ching, JJ.A.

Date of hearing: 4 October 1995

Date of judgment: 4 October 1995

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court):

1. At about 9:25 p.m. on the 1st February, 1994, the 1st applicant was stopped by the police on Canton Road. She was searched and upon her was found two plastic bags the contents of which were subsequently shown on analysis to be 30.14 grammes of a mixture containing 9.24 grammes of salts of esters of morphine. She admitted that the drugs were to be delivered to customers. This formed the basis of the first charge against her, namely trafficking in a dangerous drug. On her first appearance in court on 19th December, 1994, she pleaded guilty to this charge and received a sentence of imprisonment for three years.

2. About ten minutes after she was stopped, she was taken to premises of which she was the tenant. The second applicant, her boy friend with whom she was living, was in the flat. A search of the premises revealed drugs in the form of a brick, or otherwise, containing 280.97 grammes of a mixture of which 88.17 grammes were salts of esters of morphine. This formed the basis of the second charge which was brought against both the 1st and 2nd applicants. There were also implements which clearly had been used for the packaging of drugs. The 1st applicant was cautioned. She said that the drugs were hers and had nothing to do with the 2nd applicant. The 2nd applicant, however, said that he had purchased the drugs with another unnamed person.

3. On the next day, both applicants gave further cautioned statements. The 1st applicant admitted the 2nd charge of trafficking. The 2nd applicant alleged that the drugs had been purchased by the 1st applicant who had used the implements to package them. He gave an account of the system used by the 1st applicant and himself for trafficking.

4. The 2nd applicant pleaded guilty to the 2nd charge and was sentenced to imprisonment for six years. He was dealt with before the 1st applicant was. The 1st applicant maintained a plea of not guilty to the second charge and two days were spent on the trial within the trial which concluded with a ruling that her statements were admissible in evidence. She then changed her plea and was also sentenced to imprisonment for a term of six years to run concurrently with the sentence of three years imprisonment imposed upon her on the first charge. Both applicants now seek leave to appeal against their sentence.

5. In dealing with the sentence on the second charge, the judge below applied well-established guidelines and used a starting point of ten years for both applicants. There was an assertion that the 2nd applicant had been very cooperative with the police to whom he had supplied useful information. Indeed, the Narcotics Bureau had drawn up a confidential document shown to the judge to that effect. This morning, we have been told that the Crown has informed Counsel for the 2nd applicant that in fact there was information as to two medium level traffickers but that no arrest had been made, the syndicate in which they were involved having apparently been disbanded in May of last year.

6. In sentencing the 2nd applicant, the judge took into account the assistance he had given as well as his plea of guilty. He gave a 40% discount and therefore arrived at the figure of six years. No other grounds were advanced in mitigation. The amount of drugs was large and clearly this was an operation in trafficking organised and run by the two applicants. The 2nd applicant had two previous convictions for trafficking, the last being in 1989 for which he served five years after remission.

7. Before us, one of the grounds suggested on behalf of the 2nd applicant was that the starting point of ten years was too high. We need only say that it accords with established guidelines and that there was nothing in the facts which called for a reduction in the starting point. It was also mentioned that the judge below failed to give a sufficient discount for the plea of guilty and the cooperation with the police so that the total sentence of six years was excessive. It is to be noted that the judge gave a discount of 40% which is very close to the discount of 50% given for people who supply a great deal more information and assistance. That was clearly a generous discount and one which we feel was proper in the circumstances. The application of the 2nd applicant is therefore dismissed.

8. The judge took into account the age of the 1st applicant. She was 19 at the date of her arrest. He also took into account the fact that she had pleaded guilty, albeit only after her statement had been found to be admissible. He accepted that she was acting under the influence of the 1st applicant but he thought that her case was perhaps more serious than his since she faced two charges and had pleaded guilty at a later stage. In these circumstances he felt constrained to impose upon her a sentence no greater than that imposed on the 1st applicant and thus he sentenced her to a total of six years imprisonment.

9. The personal circumstances of the 1st applicant show a life the details of which are of a sort not unfamiliar to the courts. It has been held time and time again that these personal circumstances do not amount to substantial mitigation. She has a previous conviction for possession in 1988. Although she was acting under the influence of the 2nd applicant, she was a party to the enterprise and appears to have acted as a courier. The large amount of drugs and the implements, on some of which there were her fingerprints, were found in her home. Her original admissions of guilt may well have been to protect the 2nd applicant rather than arising from remorse and her plea of guilty was late. No other mitigating circumstances have been put forward. Indeed, this morning the 1st applicant told us that she had nothing to add to her grounds of appeal because she found that the judge's decision was quite reasonable and she knows that she was wrong. In these circumstances, the application for the 1st applicant is also dismissed.

Representation:

Mr. Duncan Percy instructed by M/s Ivan Tang & Co. for WU Tung-sang (D2)

Miss YEUNG Man-ki (D1) in person