The Queen v. Sae Lo Vimun

CACC000532/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 532 of 1984

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BETWEEN

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Coram: Hon. Li, V.P., Hon. Barker, J.A. & Hon. Rhind, J.

Date of Hearing: 3rd January, 1985.

Date of delivery of Judgment: 3rd January 1985

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JUDGMENT

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Rhind, J.:

1. The Applicant, who pleaded not guilty, was charged together with Mr. KONG Kam-chung who pleaded guilty to possessing dangerous drugs, being a mixture containing 782.20 grammes of salts of esters of morphine for the purpose of unlawful trafficking. That mixture could have been made up into three times that quantity of heroin.

2. The Applicant finished up getting a sentence of 9 years' imprisonment whereas KONG Kam-chung received a sentence of only 5½ years' imprisonment. The question that concerns the court is whether this Applicant might be justified in feeling that she has been dealt with unjustly in view of that disparity.

3. By itself, the court feels that her sentence of nine years' imprisonment cannot be faulted, bearing in mind the quantity of drugs that she brought in. This was a perfectly proper tarrif sentence for a 46-year-old woman trying to smuggle dangerous drugs into Hong Kong. She got some discount for having co-operated with the authorities by pointing out KONG Kam-chung as her accomplice in this particular enterprise, and also account was taken of the fact that she had only some very minor convictions which in no way influenced the court against her. She was treated as if she were a first offender. However, the court has to deal with this situation where her co-acused, who was a 66-year-old man, finished it up with a sentence of 5½ years only. In his favour, there was the fact that he did plead guilty and a considerable reduction of sentence was justified on that ground. If he had pleaded not guilty, there might have been serious difficulties in proving the case against him. The Crown's case would then have had to rely on the evidence of the Applicant who was his accomplice. So as I say, he did deserve a substantial reduction for having pleaded guilty. The fact that he was of advancing years might have had some relevance, but it could only have led to a minimal reduction in sentence. He was not all that old. The combined factors of his plea of guilty and his age of 66 do not, to this court, seem to justify a sentence as low as 5½ years. With respect to the trial judge, this court considers that the trial judge erred substantially on the side of leniency in sentencing KONG Kam-chung.

4. The court then has to contend with the problem of whether the Applicant should be left with this sentence of 9 years' which is the correct tarrif sentence. Can the court allow this if she might finish up with a justified sense of grievance? The court does have before it some evidence which suggests that she was merely playing the role of a courier, and that the financial rewards for her would not have been as sizeable as they would have been for KONG Kam-chung, so the court does feel that to leave her with this sentence which is so much greater than the one that he received is not just, and the court has decided that there should be some narrowing of the disparity.

5. The court feels that a sentence of 7 years' imprisonment is the correct one for her, and that should sufficiently take into account that KONG Kam-chung did deserve a substantial reduction for his plea of guilty. She is therefore given leave to appeal against sentence, and we have treated her application for leave as the hearing of the appeal, and so her sentence is reduced to one of 7 years' imprisonment.

Representation:

Mr. J. Hemmings (D.L.A.) on sentence only.

Applicant in person on conviction.

Mr. Halley for Crown/Respondent.