HKSAR v. Cheng Wai Hung

HCMA855/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.855 OF 2005

(On Appeal From TMCC 2335 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 14 October 2005

Date of Judgment : 14 October 2005

Date of Handing Down Reasons for Judgment : 9 November 2005

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REASONS  FOR  JUDGMENT

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1.The appellant was convicted on his own plea to one charge of ‘Trafficking’.  The drug involved was 0.35 gramme of a mixture containing 0.08 gramme of heroin hydrochloride.  He was sentenced to 20 months’ imprisonment.  He appeals against that sentence.

2.The case as summarised in the magistrate’s Reasons for Sentence was as follows :

“3.   The admitted facts revealed that the defendant had been arrested as a result of a police dangerous drug control buy operation.  PC 54473 (PW1) had disguised himself as a dangerous drug addict and had been given $150 for use in the operation.

4.     In the afternoon of 1^st August 2005 PW1 had telephoned the defendant to enquire whether dangerous drugs were for sale.  The defendant had replied by asking PW1 to wait at the lift lobby of 20^th floor, Leung Shui House, Leung King Estate, Tuen Mun where he had later supplied the drugs the subject matter of the amended charge for $150.  The defendant had been arrested and under caution claimed that he earned five dollars out of the transaction (in mitigation he said he had made no profit).”

3.Turning to the appellant’s background and other sentencing factors, the magistrate said :

“5. The defendant admitted 13 previous convictions the last 2 of which were for trafficking (his criminal record refers).  The Duty Lawyer representing the defendant gave the court the defendant’s personal particulars and asked for leniency.

6. In sentencing the defendant I relied upon the well established guidelines for trafficking in heroin (LAU Tak-ming 1990 HKLR 370 refers).  These guidelines suggest that for trafficking in up to 10 grammes of narcotic a prison sentence of 2 to 5 years should be considered.  The drugs transaction in the defendant’s case concerned only 1 packet and I therefore adopted as a starting point 2 years imprisonment (the lowest end of the suggested range of sentences).

7. The defendant’s criminal record was relevant in the sense that it showed that notwithstanding prison terms imposed in the past for trafficking offences that had not deterred the defendant from returning to the trade.  The starting point that I adopted therefore stood to be enhanced given the dicta of Stuart Moore VP in HKSAR v Chan Pui Chi CACC 706/97 which has been followed in subsequent cases.  I enhanced the starting point by 6 months to 30 months and then reduced the sentence to 20 months to reflect the defendant’s guilty plea.  I so sentenced.  In hindsight I consider that I should as I originally intimated (see transcript) have enhanced the starting point by 9 months which would have resulted in a prison term of 22 months.”

4.Before me, the appellant complains that he was “seduced” into committing the offence by the police and that the magistrate was wrong to have increased the starting point.

5.What he says, however, has no merit.  The admitted facts show what the police did was merely telephone to enquire whether drugs were for sale.  This is not, in my judgment, entrapment that could go to mitigation.  The magistrate was also not wrong to have enhanced the starting point.  The reasons he gave were valid.

6.The appeal is dismissed.

Mr Leung Cheuk Yin, David, SGC of the Department of Justice, for HKSAR

Appellant in person, present