The Queen v. Lo Yu Sum

CACC000441/1985

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Coram: Roberts, C.J., Silke & Barker, JJ.A.

Date of Hearing: 29th January 1986

Date of Judgment: 29th January 1986

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JUDGMENT

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Silke, J.A.:

1. Lo Yu Sum was convicted, on his own plea, of the offence of possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced to five years imprisonment. He now seeks leave to appeal against that sentence.

2. The quantity concerned was 955.22 grammes of a mixture which contained 203.99 grammes of salts of esters of morphine.

3. On 10th March 1985, a police party went to a flat in Victory Avenue. They knocked on the door of the flat and it was opened, but quickly slammed in their faces once they announced who they were. They ordered the door to be opened and, a few moment later, it was. The police went in, searched the premises and found it necessary to kick down the door of the lavatory. In that lavatory was found the applicant.

4. In the applicant's bedroom were found many small packets of dangerous drugs. His fingerprints were on various bags. He had leased the room in a false name. Packaging materials, scales, cutters, spare plastic bags, spoons and other paraphernalia used in the packaging of dangerous drugs were found in his bedroom.

5. He admitted that he was being paid $6,000 per month for the packaging of drugs. He had said that he had been brought into this matter because he was an addict and his addiction was being provided for.

6. As he was aged 20, the trial judge called for the Probation Report and Reports from the Commissioner of Correctional Services under the provisions of Section 109(A) of the Criminal Procedure Ordinance.

7. He was clearly of the view that the only appropriate method of dealing with this applicant was to send him to prison With that we fully agree. This is a nefarious trade, it does untold harm to other people. This applicant was fully aware of that being himself an addict. The fact of youth is not a major consideration in considering sentence for drug offences and it does not avoid lengthy imprisonment for them.

8. Mr. Fok, who appears for him in this Court, has drawn to our attention, and this is accepted by the Crown, to the fact that the applicant had offered to give evidence against another person in a drug related offence. Though, that will not now be necessary, the Crown accept that at the time of sentence, he was both willing and able to give some evidence which would have assisted prosecution.

9. Mr. Fok's main point is that an insufficient discount was given to the applicant in the sentence which has passed upon him for that assistance and he referred us to Sinfield.⁽¹⁾There the Lord Chief Justice, in the course of reducing a sentence passed upon a person who had helped the police, said in relation to assistance as a mitigating factor:

"Although each case varies according to its facts, according to the degree of criminality and indeed according to the degree of assistance given by the man, this (Sinfield) is a case where the assistance could not have been more valuable and could not been more dangerous to the person who gave it. "

We rely on the phrase that "each case varies according to its facts." Here, the quantity involved would have attracted a sentence of between five to eight years on the Chan Chi Ming⁽²⁾ guidelines. That would have been aggravated by the direct involvement of the applicant in the packaging of these drugs. So - the trial judge could well have considered a sentence of between nine and ten years as being the appropriate one. He passed a sentence of five years. We think that every possible discount was giver to the applicant and the application for leave to appeal against sentence is refused.

(1)    [1981] 3 Cr. App. Rep. (s) 258

(2)    [1979] H.K.L.R. 491

Representation:

P. Fok, Esq. (D.L.A.) for Applicant.

J.L. Cagney, Esq. for Crown/Respondent.