HKSAR v. Leung Kwai Ping

CACC000101/2001

CACC 101/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 101 OF 2001

(ON APPEAL FROM DCCC NO. 82 OF 2001)

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Coram: Keith JA in Court

Date of Hearing: 15 August 2001

Date of Judgment: 15 August 2001

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J U D G M E N T

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1.I grant the Applicant leave to appeal against his sentence. It may be of assistance to the court which ultimately hears the Applicant's appeal if I explain why.

2.The Applicant pleaded guilty to trafficking in a mixture containing 17.09 gms. of heroin. The tariff sentence for trafficking in 10-50 gms. of heroin is 5-8 years' imprisonment. The judge took 6 years' imprisonment as his starting-point. He did not say why he selected that point within the sentencing band. It looks, therefore, as if the judge decided on his starting-point because 17.09 gms. was more, but not much more, than 10 gms., and 6 years' imprisonment - which was more, but not much more, than 5 years' imprisonment - represented a proportionate uplift from the bottom end of the range.

3.In my opinion, it is arguable that in deciding on his starting-point in that way, the judge did not take into account a relevant consideration, namely the degree of the Applicant's involvement in the drugs trade. On his version of events (which the prosecution was not in a position to challenge), the Applicant was not heavily involved in the drugs trade, but was acting as a courier transporting the heroin from one point of the chain of distribution to another for a modest fee. The degree of an offender's involvement in the drugs trade was a factor which the Court of Appeal in Lau Tak Ming said should be taken into account in deciding where within the appropriate tariff a sentence should be.

4.This is the same reasoning which caused me to grant leave to appeal against sentence in HKSAR v. Manalo (CACC 94/2000). This line of reasoning was apparently rejected by the Court of Appeal when the appeal was ultimately heard (without, be it noted, the Applicant being represented): see [2001] 1 HKLRD 557. The Court of Appeal rejected this line of reasoning because it thought that I had been advocating that there were certain classes of drug traffickers, for example couriers and storemen, who should receive "less than a tariff sentence".

5.I was not intending to say any such thing. What I was attempting to say was that the tariffs identify the range of sentences appropriate for particular quantities of drugs. Thus, the tariff for a person trafficking in 10-50 gms. of heroin is a sentence ranging from 5-8 years' imprisonment, whether (a) he is a courier or storeman transporting or looking after the heroin for a relatively modest fee, or (b) whether he is much more heavily involved in the drugs trade. The fact that an offender is a courier or storeman does not mean that his sentence should be less than a tariff sentence, i.e. less than 5 years' imprisonment, any more than the fact that the offender is much more heavily involved in the drugs trade should result in a sentence of more than a tariff sentence, i.e. more than 8 years' imprisonment. The offender's role in the drugs trade is, however, a highly relevant factor in deciding at what point within the tariff his sentence should be.

6.In these circumstances, it is in my opinion appropriate for the Court of Appeal to look at the argument again. For my part, I think that it is arguable that the judge erred in principle in failing to take into account - in deciding where within the appropriate tariff the Applicant's sentence should be - a relevant factor, namely the Applicant's role in the drugs trade. In view of the facts that (a) there was nothing to contradict the Applicant's assertion that he was a courier some distance away from the hub of the operation, and (b) the narcotic content was only a few gms. in excess of the bottom end of the range to which the tariff of 5-8 years' imprisonment applies, it is arguable that the starting-point should have been 5 years' imprisonment.

Representation:

Applicant in person.

Ms Mary Sin, of the Department of Justice, for the Respondent.