R. v. Wong Kit Choi and Another

CACC000031/1996

IN THE COURT OF APPEAL

1996, No. 31
(Criminal)

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Coram: Power, Atg C.J., Mortimer and Mayo, JJ.A.

Date of Judgment: 12 September 1996

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J U D G M E N T

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

1. On 14 December 1995 Wong Kit-choi (A1) pleaded guilty before Gall, J. to two offences of trafficking in dangerous drugs and one offence of manufacturing them. He received sentences totalling 17 years imprisonment. On 28 December 1995 his girlfriend, Wong Sau-chun (A2) was convicted after trial before the same judge and a jury of the two offences of trafficking. She was sentenced to a total of 18 years imprisonment. A1 seeks leave to appeal against his sentences. A2 seeks leave to appeal both against her convictions and sentences.

The facts

2. A1 was the tenant of a flat. A2 lived there with him as his girl friend. The flat was used by A1 to manufacture heroin and other dangerous drugs on a substantial scale. A1 personally delivered the prepared drugs to customers. A2 knew of the drugs and of A1's activities but her role was limited to assisting him in the packaging and preparation of some of the drugs.

3. On 1 June 1995 A1 left the flat with a packaged consignment of a mixture containing 199.10 grammes of heroin. He was stopped nearby by customs men and arrested (count 1). The customs men returned to the flat with A1. A2 was seen emerging from a room where drugs had been manufactured. In the flat mixtures containing 1,327.11 grammes of heroin were found together with over 18,000 tablets of midazalam maleate and diazepam. In all there was a mixture of over 7 kilos. The customs also found packing and manufacturing equipment which included blenders, sieves, scales, additives, moulds, a metal rack, metal bars and a hydraulic jack (count 3 against A1 only).

A2's application on conviction

4. A2 did not give evidence at trial. In a cautioned statement she admitted knowledge of the drugs and her limited role in assisting A1 in the packaging and preparation of some of them. She seeks leave to raise several matters in a notice of appeal each of which is unarguable and devoid of merit. Additionally, she advances orally that she did not personally deliver or market the drugs. This last point is relevant only to sentence. Her application for leave to appeal against conviction is refused.

A1's application on sentence

5. A1 received concurrent sentences of 8 years imprisonment on the 1st count (199.10 grammes); 15 years imprisonment on the 2nd count (1327.11 grammes and 18,000 tablets); and 17 years imprisonment on the 3rd count. He contends that these sentences are too long having regard to his age (22 years), his previous good record, his pleas of guilty and the assistance which he gave to the police.

6. In offences of this seriousness and magnitude the judge rightly gave little weight to his age and previous good character. Also, the judge did not feel able to give additional weight to the applicant's frankness with the police. This was not the type of assistance which leads to a substantial reduction of sentence beyond that which is always given for a plea of guilty.

7. Whereas the sentences passed where indeed severe, proper weight was given to the pleas of guilty by reducing by about one-third the sentences which would otherwise have been imposed within the guidelines of R. v. Lau Tak Ming [1990] HKLR 370. There is no basis upon which this Court could interfere with the sentences imposed and the application is refused.

A2's application on sentence

8. A2 was given concurrent sentences of 5 years imprisonment on count 1 (on the basis that her involvement was in a mixture containing 23.25 grammes of heroin only) and 18 years imprisonment on count 2.

9. She submits that the judge failed to give sufficient weight in mitigation of her sentences to the lesser role she played in the trafficking offences. She makes particular reference to the fact that she was living with A1 as his girlfriend, that she took no personal part in selling or delivering the drugs and that she knew nothing of A1's associates or friends in the trade. She submits therefore that she was not in any real sense a partner in the overall enterprise.

10. Undoubtedly she presents a difficult sentencing problem. Authority requires that the starting point on sentence should relate to the narcotic content of the drugs involved. Although her admitted role was not specifically related to the whole amount present in the flat, she must have had some general knowledge of it.

11. The judge chose 22 years as his starting point on count 2. This is precisely within the guidelines for sentence for the quantity of narcotic involved. He reduced this to 18 years having regard to her "lesser role". However, it seems that he did not accept that she was in any way under A1's influence. He said in sentencing:

"Nor, is there any indication whatsoever that you were under the influence of WONG Kit-choi."

12. Given her relationship with A1 and her age (18 years), Mr Saw, for the Crown, was unable to support the judge's implicit conclusion on this. We are of the opinion that it would be wrong in this exceptional case to sentence on the basis that A2 was a full partner in the enterprise. The judge failed to give sufficient weight to the circumstances which led to A2's particular involvement.

13. The consequence is that 18 years imprisonment on count 2 was both wrong in principle and manifestly excessive. On these grounds we allow the application, treat the application as the appeal and substitute on count 2 a concurrent sentence of 14 years imprisonment. We do not interfere with the sentence of 5 years imprisonment concurrent on count 1.

Representation:

1st Applicant in person (leave to appeal against sentence)

2nd Applicant in person (leave to appeal against conviction and sentence)

Mr D.G. Saw (S.A.C.P.) for Crown/Respondent