R. v. Ng Wing Kwong
Read the full judgment text of CACC 62/1995 on BabelCite. This Court of Appeal judgment was delivered on 1 September 1995 before Power VP, Bokhary JA, Mayo JA.
Criminal law – trafficking in dangerous drugs – sentencing – guilty plea discount – retrial – disparity between co-accused – leave to appeal. The applicant sought leave to appeal against a 15-year sentence for trafficking in dangerous drugs, namely 2068.82 grams of a mixture containing 734.82 grams of salts of esters of morphine. He was arrested at the end of Tate's Cairn Tunnel after surveillance by Customs and Excise Officers, having emerged from premises at Block 50, Shatin City One with a plastic shopping bag in the company of co-accused Mr Chow Sai-kit, and the drugs were found in the bag. The applicant complained that the trial judge failed to give him sufficient discount for his guilty plea and that there was a sentencing disparity with his co-accused. The Court of Appeal held that the trial judge's approach could not be faulted because the trial was a retrial: on the previous occasion the applicant had pleaded not guilty and been sentenced to 20 years' imprisonment, and that history was a factor the sentencing court could properly weigh in giving less than the standard one-third discount for guilty plea. As to the alleged disparity, the co-accused's case involved a much larger quantity of drugs, and the 22½-year starting point adopted for him related to two offences, one of which was unrelated to the present offence. The present quantity fell within the 'very large quantities' category under the guidelines in Lau Tak-ming, requiring a starting point in excess of 20 years, and the applicant was fortunate that the judge took 20 years as the starting point. Leave to appeal against sentence was therefore dismissed. Starting point: 20 years; reduced discount (less than 33%) due to retrial history; final sentence: 15 years' imprisonment.
Legal issues: Whether leave to appeal against sentence should be granted
Outcome: Application for leave to appeal against sentence dismissed
Cited by 14 cases
|
CACC000062/1995 IN THE COURT OF APPEAL 1995, No. 62 (Criminal) ___________
___________ Coram: Hon Power, V.-P., Bokhary and Mayo, JJ.A. Date of hearing: 1 September 1995 Date of judgment: 1 September 1995 ________________ J U D G M E N T ________________ 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 |
Other judgments that cite this case