R. v. Yeung Kar-wing

CACC000413/1991

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Macdougall, J.A.

Date of Hearing: 17 March 1992

Date of Judgment: 17 March 1992

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J U D G M E N T

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Hon. Yang, C.J.:

1. On the 5th August 1991, the applicant pleaded guilty before Deputy Judge Ismail to a charge of possession of a dangerous drug for the purpose of unlawful trafficking and was, upon conviction, sentenced to imprisonment for 4 ¹/₂ years.

2. On the 9th May 1991 the applicant had been convicted in South Kowloon Magistracy for a similar offence and sentenced to 2 years' imprisonment. Deputy Judge Ismail ordered the sentence that he imposed and the sentence earlier imposed in South Kowloon Magistracy to run consecutively.

3. It should be noted that the offence dealt with in the South Kowloon Magistracy was committed while he was on bail for the present offence, i.e. the offence committed on the 25th September 1990.

4. The amount of drug involved here was 24.13 grammes of a mixture containing 15.97 grammes of salts of esters of morphine. These were found in the area around his bed space and on his bed. He was therefore caught red-handed.

5. He has six previous convictions for possession of a dangerous for the purpose of unlawful trafficking and 13 previous convictions for possession of a dangerous drug simpliciter between the years 1975 and 1990. He is 42 years of age.

6. In mitigation, the following points were urged upon the trial judge:

(1) his plea of guilty;

(2) his admission of the offence under caution;

(3) that the offence committed on the 9th April 1991 should be ignored for the     purpose of the present offence;

(4) the applicant is a hardcore drug addict and was used by a drug trafficker to store packs of drugs in return for the supply of drugs to feed his own need;

(5) his family had deserted him;

(6) adopting the totality principle the sentence should be at the lower end of the scale in The Queen v. Lau Tak-ming [1990] HKLR 370.

7. The judge attached some weight to the applicant's offer to give the police "a big case". On the admitted facts the judge took the view that the applicant was deeply involved in dangerous drugs. If the applicant had pleaded not guilty, the judge would have imposed a sentence of 5 years and 3 months.

8. On appeal this morning two points were emphasised by Mr. Grounds. Firstly, the discount of 9 months which was given by the trial judge was in the circumstances not generous enough. It is argued that a reasonable discount should have been given. Secondly, on the totality principle, it is argued that 6 years and 6 months is too high as a totality. Counsel for the applicant suggests that a total of 5 years' imprisonment would be appropriate.

9. In our judgment, taking all the mitigating factors into consideration, the 4 ¹/₂ years' imprisonment imposed for this present offence is entirely appropriate. However, we think the totality of 6 years and 6 months in all the circumstances of the case is excessive. In our judgment, a totality of 5 years and 9 months is appropriate. We would achieve that result by reducing the sentence of 4 ¹/₂ years to 3 years and 9 months and order the 3 years and 9 months to run consecutively with the 2 years sentence imposed in South Kowloon Magistracy, making a total of 5 years and 9 months.

10. The application is therefore allowed, we treat the application as hearing of the appeal and the appeal is allowed to the extent indicated.

Representation:

Mr. A.A. Bruce for the Crown/Respondent

Mr. Christopher Grounds (DLA) for the applicant