HKSAR v. Chan Man Kit

CACC000308/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.308
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. & Gall, J.

Date of Hearing: 25 November 1997

Date of Judgment: 25 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 originally faced three counts. They were of conspiracy to traffic in dangerous drugs and two counts of trafficking in dangerous drugs. He pleaded guilty to the two counts of trafficking and the prosecution did not proceed with the third count. The particulars of those counts are as follows: that on 16th October, he at the lobby of the Gui Cheong Building, 39 Fuk Tsun Street, Tai Kok Tsui, unlawfully trafficked in a dangerous drug, namely 54.34 grammes of a mixture containing 42.92 grammes of heroin hydrochloride. The other count was that on the same day at Room 2, 1st Floor of the Gui Cheong Building, he unlawfully trafficked in 482.15 grammes of a mixture containing 326.75 grammes of heroin hydrochloride.

2. The facts were straightforward. He was stopped and searched and, after the drugs mentioned in the first count had been found, his premises in the nearby building was searched and drugs and packaging paraphernalia were found in his room in that building. There followed an admission by the applicant that the drugs were part of a cache which he kept for the purpose of trafficking.

3. The trial judge said when sentencing:

"The total quantity of the narcotic content in this. ... in the mixture in counts two and three adds up to 369.67 grammes. The guidelines laid down in Lau Tak-ming [1990] 2 HKLR 370, indicate that this amount of narcotic falls in the band of 12 to 15 years. I take a starting point of 14 years, and allowing him a discount in round figures for his plea of guilty, and his cooperation with the Customs and Excise officers, I reduce it to 9 years' imprisonment. Proportioning that, I sentence the defendant on count two to 5 years' imprisonment and on count three to 9 years' imprisonment. The sentences to run concurrently."

4. The cooperation to which the judge referred can be found in a cautioned statement which the applicant gave to the Customs Officer where he admitted that the two packets of heroin found on his person were for sale and that he sold each ounce of white powder for $7,400. He said that that he kept $300 while the remaining $7,100 would be given back to "Sai Kor" who was the person who offered him the goods. This was the extent of his cooperation. The naming of the person Sai Kor did not lead to any arrest by the Customs Officers. The information he furnished was wholly without result.

5. The approach of the trial judge when assessing sentence was an entirely correct one. He added together the two amounts of narcotic content of the mixtures found and then assessed the sentence on the basis of that total narcotic content. He took a starting point of 14 years which was an entirely proper one, indeed it could have been higher, and then he gave a third discount in excess of one-third on account of the plea of guilty and the very limited cooperation which was given to the Customs and Excise officers.

6. The applicant, who is represented by Mr. Dickson Li, has advanced four grounds of appeal. The first one was that the sentencing judge took a too high starting point. This was abandoned in the course of argument. In the second, it was urged that the judge had fixed too high a sentence, 9 years, in respect of count 3. We have already made it plain that that was not the way the judge fixed the overall starting point for sentence. He did so by adding together the amount of narcotic content to arrive at an overall amount and then assessed the overall sentence. He was, as we have said, entirely correct in approaching the matter in that way. There is nothing in this ground.

7. In Ground 3, it is suggested that the judge did not take sufficient account of the applicant's plea and his cooperation. We do not agree. We are satisfied that the cooperation was of a very limited kind indeed. It was no more really than a description of his part in the operation and the furnishing of what appears to have been a nickname. Nothing followed as a result of this information and the applicant was fortunate to have obtained the credit he did for it.

8. Finally it is urged that the judge did not take into account that this offence was the first conviction in relation to dangerous drugs. We have no doubt that the judge did have that in his mind and, as we have already indicated, overall he gave a generous discount.

9. There has been no merit in this application and we order that the applicant suffer two months loss of time.

10. The application is dismissed.

Representation:

Mr. A.A. Bruce, S.C. & Miss Amy Chan (D.P.P.) for the Respondent.

Mr. Dickson Li Shu-pui instructed by Messrs. Y.T. Szeto & Co. for the Applicant.