Read the full judgment text of on BabelCite. was delivered on 10 June 1999 before Stuart-Moore VP, Mayo JA, Leong JA.
Criminal law – sentence – drug trafficking – heroin – previous convictions of the same or similar kind – aggravation of sentence – deterrence – protection of the public – guideline tariff – Lau Tak-ming guidelines – out of time application – leave to appeal against sentence. Applicant convicted on two counts of trafficking in heroin hydrochloride with narcotic content of 37.34 grammes (count 1) and 223.43 grammes (count 2), totalling 260.77 grammes, and sentenced to 14 years' imprisonment. Application for leave to appeal out of time against sentence on the ground that 14 years exceeded the upper end of the appropriate guideline range and that 223.43 grammes (count 2 alone) would attract 12–15 years – issue whether previous convictions for trafficking in dangerous drugs can aggravate sentence above the guideline tariff. Held, dismissing the application as utterly misconceived and without merit: a defendant with previous convictions of the same or similar kind as the offence for which he is being sentenced may receive a longer sentence than a defendant of good character, and the constant repetition of drug trafficking increases the gravity of the offence for sentencing purposes; where previous sentences have failed to deter, the court must impose a deterrent sentence to protect the public; following R v Billam (1982) Cr App R 347, previous convictions for similar offences are an aggravating feature warranting a sentence substantially higher than the starting point; Lau Tak-ming (1990) 2 HKLR 370 at 386F expressly recognises the sentencing judge's discretion to take into account the defendant's previous history of narcotic offences; with 22 prior convictions including two earlier trafficking sentences of 5 years (1988) and 6½ years (1992), and no mitigation advanced at trial, the sentence of 14 years was well within the general bounds for offences of this gravity and could not be disturbed. Leave to appeal out of time refused.
Legal issues: Whether previous convictions of the same or similar kind can aggravate sentence for drug trafficking
Outcome: Application for leave to appeal out of time against sentence refused; original sentence of 14 years' imprisonment upheld.