HKSAR v. Lam Wai Kit

CACC000040/2003

CACC 40/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 40 OF 2003

(ON APPEAL FROM HCCC NO. 311 OF 2001)

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Coram: Hon Yeung JA & Gall J in Court

Date of Hearing: 24 June 2003

Date of Judgment: 24 June 2003

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1.The applicant, Lam Wai-kit pleaded guilty before Tong J in the High Court to 2 charges of trafficking in a dangerous drug and 1 charge of possession of a dangerous drug. In respect of the trafficking charges, he was sentenced to 16 months and 8 years' imprisonment respectively to run concurrently. The sentence on the possession charge was also a concurrent term 12 months' imprisonment. The total sentence is 8 years' imprisonment.

2.The applicant now seeks leave to appeal against sentence. He is 12 months out of time.

The Facts

3.On 23 May 2001, the applicant was stopped and searched outside 205 Hoi Tan Street, Shamshuipo. He was found to have a packet of heroin (13.67 grammes containing 10.72 grammes of narcotic, the subject matter of the 1st charge of trafficking) in his pocket.

4.In a locked cubicle in the apartment under his control, two further lots of dangerous drugs (277.58 grammes containing 222.44 grammes of narcotic and some "ice", the subject matter of the 2nd charge of trafficking and the 3rd charge of possession) were found. The applicant claimed that he was helping "Ah Ho" as he had no money and no job. The "ice" was for his consumption.

Mitigation

5.In mitigation, it was suggested that applicant's girlfriend was pregnant and he wanted to marry her. However, her mother asked of $30,000 before she would give her blessing and the applicant was forced by circumstances to resort to unlawful means to raise money. His family members are said to be supportive of him. The applicant has 10 previous convictions, some of which involve dangerous drug.

The Judge's Approach

6.The judge refused to view the personal difficulties of the applicant as additional mitigating factors. The judge added the two lots of heroin together and put the sentence in the 12-15 year band under the guidelines in Lau Tak-ming [1990] HKLR 370. The judge adopted a starting point of 12 years and reduced it by one-third to reflect the guilty plea. A notional sentence of 16 months was adopted for the "ice" count. The sentences were ordered to run concurrently.

Grounds of Appeal

7.The applicant, in his written homemade grounds referred to the useful information he had provided to the police and the ICAC on the mastermind of the case. He said he was remorseful and had co-operated with the police. He also said his father was suffering from cancer.

8.The applicant tells us, in his oral submission that he has learned of successful cases of appeal against sentence in CACC 259 of 2002 and CACC 362 of 2002. He also emphasizes the information he has provided to the Department of Justice and the Police. He suggests that the mastermind is also serving terms in jail and because of the information he provides, not only does he face difficulty in jail, his family members also suffer.

9.This court have repeatedly emphasized that dangerous drug offences are extremely serious offences and that personal difficulties of the defendant cannot constitute significant mitigating factors. The applicant's remorse and co-operation have been reflected by the one-third discount.

10.Whether an appeal will be successful depends on a number of factors peculiar to the particular case. The fact that there are other successful appeals is not a ground in itself.

11.The information provided by the applicant was described as "very vague" and superficial and no further action could be taken on it. There is not yet any consequential arrest or further seizure of dangerous drugs. There is no further prosecution of any suspect. The information provided by the applicant cannot be valid ground for any further reduction in sentence.

12.If the applicant were to provide in the future useful information which leads to further arrests and/or prosecution of other criminals, the Executive will no doubt take those matters into consideration and give the applicant such further discount of sentence as the circumstances justify. It is not a matter that assists the applicant in this application.

13.The 8 years' imprisonment, far from being manifestly excessive or wrong in principle, is in fact quite lenient.

14.The applicant said in his written application that the delay of 12 months was the result of lack of fund to engage a lawyer. It is not an acceptable reason for the delay. More importantly, there is no valid ground to support the proposed appeal against sentence.

Conclusion

15.We see no reason to extend the time for leave to appeal against sentence. The application is refused.

Representation:

Mr P K Madigan, SGC of the Department of Justice for the Respondent.

Applicant: In person, present.