R. v. Ng Wing Kwong

CACC000062/1995

IN THE COURT OF APPEAL

1995, No. 62

(Criminal)

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Coram: Hon Power, V.-P., Bokhary and Mayo, JJ.A.

Date of hearing: 1 September 1995

Date of judgment: 1 September 1995

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J U D G M E N T

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Mayo, JA, giving the judgment of the Court:

1. The applicant seeks leave to appeal against the sentence of 15 years' imprisonment imposed upon him for trafficking in dangerous drug. The quantity of the dangerous drug was 2068.82 grams of a mixture containing 734.82 grams of salts of esters of morphine. He pleaded guilty at the commencement of his trial.

2. The facts were very simple. The applicant was the subject of surveillance by Customs and Excise Officers. He was seen to enter the premises at Block 50, Shatin City One and emerge ten minutes later with a plastic shopping bag. He was accompanied by another man Mr Chow Sai-kit. The two men got into a car which was then driven towards Tate's Cairn Tunnel. The officers stopped the car at the end of the Tunnel and arrested both men.

3. The dangerous drug which is the subject matter of the charge was found in the bag.

4. One of the matters complained of is that the trial judge failed to give the applicant sufficient discount for his guilty of plea.

5. While the question of the amount of discount is very much a matter for the consideration of the trial judge there was a complication in the present case.

6. The trial was a retrial. On the previous occasion the applicant had pleaded not guilty to the offence and had been sentenced to 20 years' imprisonment. It is in these circumstances that the trial judge did not give a discount of 33% of the term.

7. We do not think that the trial judge's approach in this respect can be faulted. The applicant did not plead guilty at the first trial. This was a factor which could properly be weighed by the court.

8. The other main complaint which is made is the discrepancy claimed to exist between the sentences imposed on the applicant and the sentence imposed on Mr Chow his co-accused. The quantity of dangerous drugs involved in Mr Chow's case had been much larger.

9. This is not the correct approach to sentencing. The amount of dangerous drug the subject of the present appeal fell into the category of "very large quantities of dangerous drugs" according to the guidelines in Lau Tak-ming.

10. Once this level is passed the correct starting point is a figure in excess of 20 years. The applicant was fortunate that the judge took a starting point of 20 years. The fact that a starting point of 22½ years appears to have been adopted for Mr Chow in relation to 2 offences one of which was unrelated to the present offence does not take matters any further. The applicant could not legitimately harbour a sense of grievance that there was a significant disparity in the sentences imposed.

11. The application for leave to appeal against sentence is dismissed.

Representation:

Mr I.G. Cross, Q.C. & Ms Lily Ho for Crown Prosecutor

Mr Keith J. Oderberg (DLA) for Applicant