HKSAR v. Ngan Fun Tak

CACC 200/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 200 OF 2007

(ON APPEAL FROM DCCC NO. 386 of 2007)

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BETWEEN

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Before: Hon Tang VP and Wright J in Court

Date of Hearing: 18 March 2008

Date of Judgment: 18 March 2008

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JUDGMENT

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Hon Wright,  J.:

1.The applicant pleaded guilty on 5 June 2007 in the District Court before His Honour Judge Mackintosh to a single count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The particulars of offence read:

NGAN Fun-tak, on the 15th day of March 2007, near South Bound Number Two Incoming Coach Pickup Area, Lok Ma Chau Border Control Point, Lok Ma Chau, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug namely 54.77 grammes of a mixture containing 42.23 grammes of heroin hydrochloride.

3.The summary of facts agreed by the applicant revealed that the police had intercepted him after he had arrived in Hong Kong from the Mainland: when he was searched the drugs were found in plastic bags inside his underpants.  At the scene and in a subsequent interview the applicant admitted that he had carried the drugs into Hong Kong from the Mainland in anticipation of a reward of $500 after he had left them in a flower bed at a park in Hong Kong for collection by another.

4.The judge applied the tariff as set out in R v LAU Tak Min [1992] HKLRD 370 recognizing that the quantity of narcotic came close to the upper limit of the relevant sentencing bracket, that for between 10 and 50 grammes in respect of which a period of between 5 and 8 years imprisonment after trial is provided.

5.In ascertaining the appropriate starting point the judge correctly recognized that importation of drugs into Hong Kong is an aggravating factor for the purpose of sentence.  He also took into account, properly, that amongst the 22 previous criminal convictions in respect of which convictions were recorded against the applicant, one in the year 2000 was for trafficking in a dangerous drug which resulted in a period of 6 years imprisonment being imposed by the Court of First Instance.  We note that since serving that sentence the applicant has twice been convicted of two further offences of possession of dangerous drugs.

6.The judge recognized that the quantity of narcotic trafficked by the applicant usually would result in a starting point of some 7½  years imprisonment but due to the factors personal to the applicant the judge took a starting point of 8 years.  He was justified in taking that approach.

7.From the starting point he allowed the applicant a full one third discount resulting in the sentence against which the applicant seeks leave to appeal. 

8.The applicant received a meaningful discount from the maximum jurisdiction of the District Court in recognition of his plea of guilty, albeit that the starting point exceeded that jurisdiction. 

9.The sentence is entirely appropriate.  I would dismiss the application.

Hon Tang, VP.:

10.For the same reasons I too would dismiss the application. The application is dismissed.

Appellant in person.

Ms Alice Chan, Ag. SGC, of the Department of Justice for Respondent