HKSAR v. Lam Wai Keung

CACC000729/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.729
(Criminal)

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Coram: Hon. Power, V.-P. and Stuart-Moore, J.A.

Date of Hearing: 2 April 1998

Date of Judgment: 2 April 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant pleaded guilty before Saied J. to one count of trafficking in a dangerous drug, a count of manufacturing was left on the file.

2. The count to which he pleaded alleged that on 13th July 1996 at Flat B, 13th floor, Wing Lam Mansion, San Lau Street, Hunghom, he trafficked in a dangerous drug, namely 1,461.05 grammes of a mixture containing 915.95 grammes of heroin hydrochloride. The quantity of the narcotic content was therefore well under 1,000 grammes.

3. The facts were all too familiar ones. The applicant was stopped and taken to his premises which were searched and, as set out in the Summary of Facts, the following occurred. The police found three half-unit blocks of heroin together with some equipment and chemicals capable for adulterating high grade heroin into lower grade heroin. The defendant was immediately cautioned and arrested in relation to the dangerous drugs found inside the premises. The defendant then voluntarily surrendered a half-unit block of heroin from the waistband of his trousers. The dangerous drugs seized from the defendant and from inside the premises was sent to Dr. Poon for analysis. The half-unit block found in the defendant's possession was 346.54 grammes of a mixture containing 232.33 grammes of heroin hydrochloride. In respect of the dangerous drugs found inside the premises, the total was 1,114 grammes of a mixture containing 683.62 grammes of heroin hydrochloride. The retail value of the drugs was $1.139m.

4. The trial judge when sentencing said:

"The degree of the defendant's involvement was that of a courier, a cog in the enterprise but .............. an important cog..............

In fixing a starting point I rely on the guidance given in a comment made by Mayo J.A. in R. v. Yu Kwok-lung, Criminal Appeal No.31/95, where he said:

'It has to be appreciated that any sentence greatly in excess of 20 years is likely to constitute a sizeable proportion of the remainder of the deceased's life. Where there are not any gravely aggravating factors, a sentence in the region of 25 to 26 years' imprisonment is usually imposed, even where the quantity of dangerous drugs is in excess of 600 grammes.'

I take my starting point as 25 years. The defendant pleaded guilty at an early stage and has co-operated and has continued to co-operate with the authorities. It is acknowledged by the authority concerned that he has provided information which is considered to be useful to the extent that efforts are now afoot to trace two men, against whom this defendant has indicated his willingness to testify. Mr. Chandler says, rightly in my view, that the defendant does not fall in the category of supergrass. I take into account his consistent co-operation with the authority .................

Considering all the foregoing I allow him a discount of 10 years and sentence him to 15 years' imprisonment."

5. While we agree with much that has fallen from the judge, we are not persuaded that the proper starting point was one of 25 years. He was not convicted of manufacturing, that charge was left on the file. He was convicted of the offence of trafficking and the amount involved was under 1,000 grammes. We are satisfied that a proper starting point would have been 22 years. We accept that he had not only pleaded but also co-operated with the police and we are prepared to allow the discount which the judge thought was appropriate. This will reduce the sentence to one of 12 years.

6. The hearing of the application is treated as the hearing of the appeal. The appeal is allowed and the sentence is reduced accordingly.

Representation:

Mr. Veltro, S.G.C. (D.P.P.) for the Respondent

Applicant in person.