HKSAR v. Lam Chor Ping

[English Translation - 英譯本]
CACC 217/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 217 OF 2008

(ON APPEAL FROM HCCC NO. 259 OF 2007)

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BETWEEN

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Before: Hon Yeung JA and Tong J in Court

Date of Hearing: 23 January 2009

Date of Judgment: 23 January 2009

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

1.On 31 July 2007, police officers stopped and searched Lam Chor Ping, the Applicant herein, outside Room A, 10/F, Cheong Kee House, 21 Soy Street, Kowloon (“the premises”) and found on his person the key to the premises.  The police officers then opened the door with the key and entered the premises for the purpose of executing a search warrant issued by the court.  At that time, the Applicant was a tenant of the premises.  

2.Later on, the police officers found inside the premises a total of 20.80 grammes of crystalline solid containing 20.04 grammes of “ice” as well as a small quantity of heroin.  A large quantity of drug packaging tools and cash (HK$22,383.10 and Renminbi 1,790.5) were also found.

3.The Applicant admitted to the police officers that the “ice” was purchased in Shenzhen for $6,000 and brought back to Hong Kong.  He agreed that he intended to sell some of the “ice” and use some of it for self-consumption.

4.As a result, the Applicant was charged with one count of trafficking in a dangerous drug (i.e. the aforesaid “ice”) and one count of possession of a dangerous drug (i.e. the aforesaid heroin).

5.The Applicant pleaded guilty to possessing the heroin but denied trafficking in the “ice”, and he disputed the oral and written admissions which he had allegedly made.

6.After a hearing which lasted almost 6 days, Barnes J, the trial judge, ruled that the admissions were made by the Applicant voluntarily and were therefore admissible as evidence.  At that point, the Applicant changed his mind and pleaded guilty to trafficking in the “ice”.

7.For the trafficking offence and possession offence, Barnes J sentenced the Applicant to imprisonment for 6 years 2 months and 4 months respectively, and the sentences were ordered to run concurrently.

8.The Applicant now applies for leave to appeal against the sentence in respect of the trafficking offence.

9.The Applicant submits that, having regard to the quantity of the “ice” involved, the starting point should be 7 years to 7½ years instead of 8 years as adopted by Barnes J.  He cites a number of decided cases in purported support of his argument.

10.The Applicant submits that at trial he had been misled by Counsel acting for him into believing that even if he did not plead guilty at the first opportunity, he could still get a one-third discount on his sentence.  In the end, however, he was given a discount of less than one-fourth, which (he submits) was unfair to him.  He also submits that his senile parents and young children have to be looked after.  He therefore requests the court to pass a lenient sentence and give him a chance to turn over a new leaf.

11.Drug trafficking is an extremely serious offence and, in order to combat this offence, the court has laid down specific sentencing guidelines.  According to AG v Ching Kwok-hung [1991] 2 HKLR 125, the starting point for trafficking in 10 grammes to 70 grammes of “ice” is 7 to 10 years.

12.Of course, the court has a discretion to determine, within the parameters of the aforesaid guidelines, an appropriate starting point in light of the facts of a particular case and/or the exceptional circumstances of a particular defendant.

13.As Barnes J has correctly pointed out, the present case involves a cross-border offence and the Applicant is not a first offender.  The records show that he has 14 previous convictions, 5 of which involve dangerous drugs including two for drug trafficking, while the remaining convictions are mostly for offences involving dishonesty.

14.The starting point of 8 years adopted by Barnes J has not exceeded the parameters of the sentencing guidelines and is eminently justified and correct.  Even if a starting point of less than 8 years has been adopted in some previous cases of a similar nature and involving the same quantity of drugs, it does not follow that we have to vary the starting point adopted by Barnes J.  

15.The court usually gives a one-third discount to those defendants who have pleaded guilty because such a discount accords with public interest.  The plea of guilty (1) avoids the inconvenience and other detriment which the community would inevitably suffer if a trial took place, and (2) saves expenses in respect of judicial proceedings, provision of court facilities, prosecutorial work, provision of legal aid, witness fees and jurors’ fees, and also avoids the inconvenience which members of the public would suffer by serving as jurors (See HKSAR v Chan Ka Shing, CACC 241/2008).

16.In the present case, it is true the Applicant pleaded guilty in the end, thereby saving expenses in respect of jurors’ fees and avoiding inconvenience which might otherwise be caused to the jurors.  However, the Applicant had initially objected to his admissions being adduced as evidence, as a result of which the court had to hold a 6-day hearing in order to determine the issue.

17.The Applicant’s conduct not only wasted the court’s time and prevented the court from dealing with other cases more expeditiously, but also wasted public money, including expenses arising from prosecutorial work and the provision of legal aid.

18.Barnes J’s decision of not giving the Applicant a one-third discount is correct.

19.Nor does the fact that the advice given by Counsel for the Applicant differed from the Judge’s final decision provide a reason for varying what is a properly made decision.

20.The less than one-fourth discount given to the Applicant was a decision made by Barnes J in the exercise of her discretion.  There is no room for varying her decision, which is justified in the circumstances.  In respect of drug trafficking offences, the hardship suffered by the defendant and his family as a result of the sentence imposed on him is not a mitigating factor.

21.In view of the nature and quantity of the drugs involved, the Applicant’s background and the way in which the case had proceeded, the overall sentence of 6 years and 2 months is not manifestly excessive and we see no reason for varying it.

22.We refuse to grant leave to the Applicant to appeal against sentence.

Ms. Evena Chan, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.

The Applicant in person, present.

Translated by the Judgement Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.