HKSAR v. Lee Man Wai

CACC 386/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 386 OF 2005

(ON APPEAL FROM HCCC NO. 141 of 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP and Stock JA

Date of Hearing : 13 January 2006

Date of Judgment : 13 January 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.In the Court of First Instance, on 23 August 2005, the applicant, aged 33, confirmed the guilty plea he had entered in the Magistrates’ Court to a single charge of trafficking in a crystalline solid containing 481.63 grammes of methamphetamine hydrochloride (ice), 9.33 grammes of cocaine and a tablet containing 12 milligrammes of midazolam.  He was sentenced by Deputy High Court Judge D Pang to 11 years’ imprisonment against which he now seeks leave to appeal.

2.The drugs in question were found by the police at his home in Chung Mei Lo Uk Village, Tsing Yi.  In mitigation it was said that the applicant had been motivated to traffic in drugs, unlike anything else appearing on his criminal record, because of the financial pressure upon him arising from 7 outstanding mortgage payments on his other home in Shenzhen.  Having exhausted all avenues of raising money, he had allowed himself to be persuaded by a friend to keep and to distribute drugs in return for a reward.

3.When sentencing, the judge adopted a starting point of 16½ years and reduced this by a third to reflect the applicant’s plea of guilty.  The applicant now complains that this sentence was too severe.

4.The tariffs for trafficking in ice are set out in the guidelines provided in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125 at 130.  The relevant band into which the quantity of ice in the present case fell was “between 300 and 600 grammes” for which a tariff of 14 to 18 years’ imprisonment is recommended.  It can readily be seen that for just over 481 grammes of ice, the starting point selected by the judge was wholly appropriate.  The mitigation advanced on the applicant’s behalf could have no bearing whatever on the sentence imposed.  It is well-established that financial pressure cannot excuse or reduce a person’s culpability where criminal offences are concerned.  This factor may explain why a person has resorted to crime, as here, but it cannot be something which serves to reduce a sentence which is in all respects appropriate to the circumstances.  There are many who find themselves facing financial problems and nothing which is said by this court should be viewed as lending support to a suggestion that this can provide any sort of an excuse for resorting to crime.

5.The application is dismissed.

Mr Joseph Wong, SGC, of Department of Justice, for the Respondent

The Applicant, in person