The Queen v. Fung Kwok Man

CACC000435/1995

IN THE COURT OF APPEAL

1995, No. 435
(Criminal)

----------

Coram : Hon Yang, C.J., Bewley and Keith, JJ.

Date of Hearing : 14 February 1996

Date of Judgment : 14 February 1996

----------------------

J U D G M E N T

----------------------

Hon Yang, CJ:

1. The applicant was convicted after trial of conspiracy to traffic in dangerous drugs and he was sentenced to a term of imprisonment for 15 years. This is his application for leave to appeal against his sentence. His application for leave to appeal against conviction has been abandoned.

2. The judge in passing sentence took into account the fact that the applicant recruited a somewhat younger man, Leung Wing Chung by name, to carry out the deliveries of the dangerous drugs which he, the applicant, had sold to various customers.

3. On the day in question, the applicant was found to have in his possession about 288 grammes of a mixture containing just over 96 grammes of salts of esters of morphine. In the apartment which was traceable to the applicant, various paraphernalia connected with drug trafficking were found.

4. The judge, in passing sentence did not, unfortunately, state what his starting point was. However, he did take into consideration the fact that the applicant took advantage of Leung Wing Chung's financial difficulty at the time and, as in the judge's words, "you preyed upon him by inviting him to join you in your drug trafficking activities."

5. The judge also noted that for a period of about two weeks, the applicant first accompanied Leung in making the deliveries to various people in various housing estates. Later on, the applicant allowed Leung to make the deliveries by himself. The judge continued: "To that extent it can be said that you have corrupted him." Taking all the circumstances into consideration, the judge passed the sentence that he did.

6. Our attention has been drawn by counsel for the prosecution to the value of the drugs delivered and we are told that the proceeds from each delivery was about $10,000 to $20,000 per day, which figure gives us some indication (and nothing more than that) of the size of the operation for which the applicant was responsible.

7. In his submission this morning, Mr Dinan on behalf of the applicant argues that Leung was only sentenced to imprisonment for 4½ years, and taking into consideration the case of Lau Tak Ming [1990] 2 HKLR 370, the sentence imposed by the trial judge on the applicant is, he argues, manifestly excessive.

8. Here, the applicant faced the charge of conspiracy to traffic whereas Leung faced a charge of trafficking on one particular occasion. Taking all the circumstances into consideration, we are of the view that the 15 years passed upon the applicant is somewhat on the high side but not high enough for us to interfere the sentence, falling, as it does, within an acceptable range of sentences. The application is dismissed.

Representation:

Mr Paul Dinan (D.L.A.) for Applicant - re: sentence

Mr Kevin P Zervos of the Attorney General's Chambers for Crown/Respondent