The Queen v. Lam King Wah

CACC000410/1989

BETWEEN

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Coram: Hon Silke, V-P, Kempster and Power, JJA

Date of Hearing: 5 January 1990

Date of Judgment: 5 January 1990

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JUDGMENT

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Kempster, JA :

1. This is the judgment of the Court.

2. On 22 June 1989 Lam King-wah pleaded guilty in the High Court to two offences; one of possessing dangerous drugs for unlawful trafficking and the other of possessing firearms and ammunition without a licence. As regards the first offence he was sentenced by H.H. Judge Leonard, sitting as a Deputy High Court Judge, to fifteen years and as regards the second to six years imprisonment; the sentences to run consecutively.

3. The offences were disclosed as a result of the observation, on 19 November 1988, of premises in Jockey Club Road, Fanling. The applicant, so called because he seeks leave to appeal against sentences amounting in all to 21 years imprisonment, was seen to drive up to and to enter the premises and a little later to emerge carrying two travelling bags which he placed in the back seat of his vehicle. He was approached by police and there were found in the bags a mixture of 16,859.98 grammes containing 15,343.32 grammes of salts of esters of morphine. These drugs are known as No. 4 heroin and, when notionally converted to No. 3 heroin in accordance with the principles outlined by this Court in R v Cheng Yeung 1989 2 HKLR 258, the total weight is 238,620.83 grammes having, it was explained at trial, a street value of about HK$11 million. After his apprehension the applicant volunteered the information that he had something hidden in the premises which would interest the authorities. A caution was administered and he confessed to having four firearms in his possession. He led the police to a cockloft and pointed out the weapons and ammunition as well as certain apparatus for checking the degree of purity of dangerous drugs.

4. The weapons in question were two 7.62 mm calibre Chinese type 54 pistols, one 7.62 mm calibre Hungarian 48m pistol and one .25 calibre Biretta Model 950B pistol. The small quantities of ammunition were appropriate for these weapons.

5. The judge did not proceed immediately to sentence because counsel then representing the applicant sought an adjournment during which the applicant might make a statement calculated to assist the police in relation to criminal matters generally. When the case came back before the court on 10 July such a statement had been made but, apparently, it did not assist the police in any way.

6. We would say without qualification that the learned judge's approach to sentence was in virtually all respects exemplary. He applied the conversion factor from No. 4 to No. 3 heroin, discounted the result in fairness to the applicant as this court had done in R v Cheng Yeung and took into account both the pleas of guilty and the circumstances in which the firearms offences came to light. He also had regard to the question of totality. On the applicant's behalf Mr Plowman concedes that it is really only in the context of totality that the overall sentence of 21 years can be criticised.

7. We agree that each sentence was appropriate having regard to the gravity of the respective offences. Nonetheless we consider that a sentence of 21 years for a man of previous good character who has pleaded guilty, has been cooperative and who led the police to arms of which they were previously unaware may be afforded a greater degree of leniency than a direction that the sentences should run consecutively allows.

8. We propose to apply the provisions of section 68 of the Criminal Procedure Ordinance and to order that four of the six years imprisonment imposed for possession of firearms and ammunition should run concurrently with the sentence of 15 years thereby rendering the overall sentence one of 17 years. Put in technical language we allow the application for leave to appeal against sentence, treat this is the hearing of the appeal and allow the appeal in the sense just outlined.

Representation:

Gary Plowman (DLA) for applicant

K.J. Oderberg for Crown Prosecutor