R. v. Cheng Sok in

CACC000552/1996

IN THE COURT OF APPEAL

1996, No.552

(Criminal)

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Coram: Hon. Power, Ag. C.J. & Mortimer, J.A.

Date of hearing: 28 February 1997

Date of judgment: 28 February 1997

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J U D G M E N T

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Power, Ag. C.J.(giving the judgment of the Court):

1. The applicant faced two counts of trafficking in a dangerous drug. The first count particularized that she and a man called Yeung Ngan-bun on 5th March 1996, at Room 1408 Block 6, Homantin Estate, Kowloon, trafficked in a dangerous drug, namely 1,203.27 grammes of a mixture containing 125.19 Krammes of heroin hydrochloride. The second count states that on the same day at the ground floor of No.20, Block 6, Kwai Chung Estate, she trafficked in an amount of 369.69 Krammes of a mixture containing 139.97 Krammes of heroin hydrochloride and 30 tablets containing 578 milligrammes of midazolam maleate. She pleaded guilty to both of those charges and was sentenced by Deputy Judge Wilson to eight years imprisonment on each, the sentences being ordered to be concurrent. She now seeks leave to appeal against those sentences urging in particular that she has two young daughters who need her care and asking the court to bear in mind that she was young at the time and was used by others.

2. The facts reveal that, at about 9.35 hours on the day charged, she returned to the premises which she occupied with Yeung, and after arrival admitted to the police, who were already inside the premises and who had conducted a search therein, that the quantity of dangerous drugs involved in the first charge which had been found inside a wardrobe belonged to her. In all the police found nine bags of suspected dangerous drugs, three blocks of suspected dangerous drugs, two electric blenders and one bag of yellow plastic straws. She was then taken to a video shop of which, it seems, she was the manager and owner, and a search at the shop revealed a further 38 packets of suspected dangerous drugs and 30 tablets of suspected dangerous drugs. These were the subject of the second count. Also found at that shop was a postal scale with traces of suspected dangerous drugs and a blender cup with similar traces. The drugs and the items found indicate active trafficking.

3. The trial judge when sentencing, having been addressed in mitigation by counsel, said:

"It's a tragic case, because other than this isolated and serious lapse into drugs, both husband and wife seem to have been a hard working couple, seriously attempting to better the lives of themselves and their children.

The wife appears to have been vulnerable to bad elements in her contacts with the public in her video shop, and gradually become ensnared and persuaded to assist with drug trafficking. I have a confidential memorandum from the officer in charge of the case about the information given by the wife. The result of that has not been particularly helpful to the police, but I have no reason to suppose it was not all that the wife was able to give.

It appears to me that the reality of the situation is that although there are two charges against the wife, she had possession of one quantity which she happened to have concealed in two different places, and that it follows that I must look at the aggregate of the two quantities of drugs, and bear in mind the totality principle in sentencing her."

He went on to say:

"Bearing in mind the aggregate of the two quantities, I select an overall starting point of 12 years, but give her discounts for her pleas of guilty and such limited assistance as she has given, and she is sentenced to 8 years' imprisonment concurrent on each of charges 1 and 3."

4. The trial judge might well, when looking at the overall quantity, have taken a starting point of 13 years. He did not but took one at the very lowest end of the appropriate sentencing band, i.e. 12 years. He gave a full one-third discount. This court has said many times that it cannot allow itself to be persuaded when dealing with trafficking offences by suggestions that leniency should be advanced to persons who are old or vulnerable. Drug traffickers use the old and vulnerable in the hope that they will not fall under suspicion and also in the hope that they will escape the more serious punishment than might otherwise be imposed. We have made it plain that this will not be the case. The sentence was an entirely proper one well within the applicable guidelines. Nothing that has been said that would allow us to interfere therewith. The application must be refused.

Representation:

Mr. D.G. Saw (Crown Prosecutor) for the Respondent.

Applicant in person.