R. v. Yu Kwok Lung

CACC000031/1995

IN THE COURT OF APPEAL

1995, No. 31
(Criminal)

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Coram: Hon Mortimer, Mayo, JJ.A. and Wong J.

Date of hearing: 21 November 1996

Date of judgment: 21 November 1996

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against the total sentence of 20 years' imprisonment imposed upon him for trafficking in a very large quantity of dangerous drugs.

2. The application is made out of time. He did however file a notice in time but then abandoned the application. We therefore have to consider whether this application can be treated as a nullity. Having regard to the very heavy sentences which were imposed we consider that we should and we propose proceeding on that basis.

3. The underlying facts of the two counts are closely related. The applicant and another man was seen in a carpark carrying a bag. Two police officers approached the men and searched the contents of the bag. They found what they suspected was a quantity of dangerous drugs. It subsequently transpired that the bag contained 1377.41 grams of a mixture containing 527.56 grams of salts of esters of morphine.

4. The men then led the police officers to a flat. Entry to the flat was secured by a key which had been in the possession of the applicant. A further very large quantity of dangerous drugs were found in the flat. The amount of dangerous drugs was 11,000 grams of a mixture containing 8,000 grams of salts of esters of morphine.

5. The applicant pleaded guilty to trafficking in dangerous drugs on both the first and second count. Sentences of 12 and 20 years' imprisonment respectively were imposed on these counts and Deputy Judge Bokhary as she then was ordered that the sentences be served concurrently. The starting point adopted by the judge was 30 years and she gave the applicant a 1/3 reduction for his plea.

6. The question which arises on this application is whether 30 years' imprisonment was the correct starting point.

7. It has to be accepted that the total amount of dangerous drugs was far in excess of what is described in Lau Tak Ming as "a very large quantity" namely 600 grams.

8. However once the amount of dangerous drugs exceeds 600 grams the size of the seizure is not necessarily the main factor to be weighed in determining an appropriate sentence.

9. It has to be borne in mind that the applicant was probably not the prime mover in this case as he appears to have been taking instructions from another man. Also it needs to be remembered that the applicant was not convicted on the manufacturing count he was charged with.

10. It has to be appreciated that any sentence greatly in excess of 20 years is likely to constitute a sizeable proportion of the remainder of the accused's life. Where there are not any gravely aggravating factors a sentence in the region of 25 or 26 years' imprisonment is usually imposed even where the quantity of dangerous drugs is greatly in excess of 600 grams.

11. What is clear however is that a starting point of 30 years' imprisonment was manifestly excessive in the circumstances of this case.

12. We consider that an appropriate starting point would have been 25 or 26 years' imprisonment. If 1/3 is then taken from this it leaves 17 years which we consider to be the appropriate sentence in this case.

13. We grant leave to hear this application out of time and treating the application as the appeal we reduce the total sentence from 20 years to 17 years. To this extent this appeal is allowed.

Representation:

Mr D.G. Saw for Crown Prosecutor

Yu Kwok Lung - Applicant in person/present