R. v. Ng Kai Ming
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CACC000075/1997 IN THE COURT OF APPEAL 1997, No. 75 (Criminal) ____________________
____________________ Coram: Bokhary & Mayo JJA & Wong J in Court Date of hearing: 30, May 1997 Date of judgment: 30, May 1997 ____________________ J U D G M E N T ____________________ Bokhary JA: 1. This applicant, who seeks leave to appeal against sentence, is a man in his early 30's. He faced an indictment containing three dangerous drugs counts. The first two were of trafficking, while the third was of manufacturing. 2. On January 17 this year, he pleaded guilty before Mr Justice Stock to the two trafficking counts but not guilty to the manufacturing count. That count was left on the file. 3. For various reasons, sentencing could not take place until February 4. 4. The applicant was on that day sentenced to a total of 11 years' imprisonment. That was by way of a 10-year term on the 1st count and a 31/2 year-term on the 2nd count which was made 21/2 years concurrent with and one year consecutive to the term on the 1st count. 5. As for the dangerous drugs concerned: those the subject-matter of the 1st count consisted of 4,108.90 gms of a mixture containing 546.16 gms of heroin hydrochloride; and those the subject-matter of the 2nd count consisted of 152.70 gms of a mixture containing 36.25 gms of heroin hydrochloride. 6. What had happened was this. On March 16 last year, customs officers were keeping watch on a flat in Yuen Long. They saw the applicant emerge from the flat. When they arrested him in the street, they found the dangerous drugs the subject-matter of the 1st count in a briefcase which he was carrying. Those drugs were in the form of 12 slabs. Back at the flat, the dangerous drugs the subject-matter of the 2nd count were found. They were in two packets. 7. Adding up the heroin hydrochloride the subject-matter of the 1st and 2nd counts gives a total of 582.41 gms of such narcotic. 8. The guideline quantity bracket here is therefore the one for between 400 gms and 600 gms, for which the guideline starting point is 15 to 20 years' imprisonment. 9. When passing sentence, the judge said that he took an overall starting point of 19½ years' imprisonment for the two counts taken together. As can be seen, that is within the guidelines to which we have just referred. 10. In sending the applicant to prison for a total of 11 years, the judge gave him a discount of 8½ years, which is two years more generous than a discount of a third, which would be the discount that one would expect for the guilty pleas on their own. 11. In giving the applicant that 8½ years discount, the judge had taken into account: the guilty pleas; the fact that it had been indicated at the pre-trial review that they would be forthcoming; the applicant's unfortunate background; his psychological problems; what the judge assessed to be his genuine remorse; and certain help which the applicant had given the authorities, of which help the judge made a careful assessment. 12. Those were the factors available to the applicant by way of mitigation. He certainly could not pray in aid a previous good character. He has a long criminal record for dishonesty and even violence. And that record shows, among other things, that in November 1985, for a number of robberies and a number of burglaries, he was sent to prison for a total of 12 years. 13. In his Notice of Application for Leave to Appeal against Sentence, the applicant has written this by way of grounds:
14. As it seems to us, the judge had taken all the mitigating factors available into account and, it might even be said, quite generously into account. 15. Other matters were referred to by the applicant in addressing us. He spoke of, among other things, his wife's illness and the hardship to his family in the circumstances which confront her and which confront him. 16. The impact on the family of the punishment which must be meted out to offenders is a very unfortunate and indeed tragic but nevertheless unavoidable by-product of the criminal justice system. 17. Another matter which was brought to our notice by the applicant - and on which we have received certain information from prosecuting counsel stated in open court after we had adjourned for enquiries made over the luncheon adjournment - is this. Since the time when he was sentenced, the applicant has been co-operating further with the authorities. The value of his co-operation and where it might lead is, at the moment, unknown. Nor has anybody been able to form any reliable estimate as to when the same will be known. 18. We informed the applicant that one way of dealing with this case is to deal with it without taking into account his co-operation with the authorities since he was sentenced, leaving it to him to seek a remission from the executive in due course as a return for such co-operation. 19. It is our responsibility to decide whether to deal with this case now or to adjourn it. But, of course, it is right that we should allow the applicant to have a say on the matter. And when we invited him to have his say, he said that he really was not in a position to decide what was the best course so that he had to leave it to us. 20. In our judgment, it is in the interests of the orderly administration of justice, which interests encompasses the applicant's own interests, to proceed to a decision now. And we therefore do so. 21. It is our judgment that on the material before the judge, the sentence which he passed cannot be faulted. 22. Accordingly, we dismiss this application for leave to appeal. In doing so, we have not taken any account whatsoever of the applicant's co-operation with the authorities since he was sentenced. So such co-operation is available in its entirety for him to use for the purpose of seeking executive clemency. No doubt, the authorities with whom he is co-operating will help him as to when it is appropriate to seek such clemency. That time lies in the future.
Representation: Applicant, Ng Kai Ming, in person Mr A A Bruce QC & Mr S L Tam (of the Attorney General's Chambers) for the respondent |