The Queen v. Yau Po Hung

CACC000626/1987

BETWEEN

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Coram: Hon. Kempster & Penlington, JJ.A.

Date of hearing: 25th May, 1988.

Dace of delivery of judgment: 26th May, 1988.

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J U D G M E N T

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Penlington, J.A. :

1. This is an application for leave to appeal against a sentence of 10 years imprisonment, on a charge of possession of a substantial quantity of dangerous drugs, 2.2 kg, for the purpose of unlawful trafficking. It is perhaps a natter of comment that there have been a large number of these cases before the Court recently and indeed looking through today's list this particular offence predominates. We would like to think that this reflects the success of the law enforcement agencies in detecting these offences rather than an increase in the use of dangerous drugs and understand such is the case.

2. The facts of the case are simple. The applicant was seen in Portland Street, Monghok, by two constables on the 1st August 1987. They regarded him as behaving in a suspicious manner. He was approached but ran away. Eventually after a chase he was found and a bag which he had discarded was opened. Inside there were five plastic bags containing the dangerous drugs.

3. The applicant pleaded guilty to the charge. He offered to give assistance which in fact proved to be of little value. This of course is quite often the case because those engaged In the drafficking of dangerous, drugs tend to make sure that if anybody is caught he would not have a great deal of information to give. We can only however assume that he was willing to give such assistance he could.

4. The applicant was aged 22 years at the time of the offence. He has no previous conviction. He is single.

5. The trial judge in passing sentence said that he started from a point of 14 years and gave a discount for the various mitigating factors of 4 years arriving at a total sentence of 10 years.

6. Here Mr. Tang has gone into previous cases and has obviously spent every effort in giving us the benefit of previous decisions:. both of this Court and of the High Court have considered those authorities and also one which has been referred to us by Wilson, who appears for the Crown, that of R. v. Yim Chun Pong^(l). There another division of this Court held that a sentence of E-12 years was appropriate after trial for possession of 1.7 kgs. The Court reduced the sentence to one of 9 years. In the light of those decisions it does seem to us that on the facts here the trial judge did start at a too high level. On the previous authorities a starting point of 12 years would have been appropriate. He has however given a substantial discount for the mitigating factors. There was a plea of guilty but it was in the face of overwhelming evidence. The applicant does have a clear record but as has been said in the past a clear record is of little effect in the offences of this sort. However undoubtedly it must be taken inco account as is the fact that he is very young. We think that without anything more the discount given may have been too generous but we also take into account the fact that he did offer to give assistance albeit it was of little value. Because of that the discount given was appropriate.

7. We therefore allow the same discount of 4 years reaching a final sentence of 8 years. The application for leave to appeal will therefore be granted; we treat this as the hearing of the appeal and the sentence will be reduced to one of 8 years imprisonment.

(1) Criminal Appeal No. 400 of 1985

Representation:

Dixon R.W. Tang (C.K. Mok & Co.) for Applicant

M.D. Wilson for Respondent