Leung Yat Wah v. R.

CACC000008/1994

IN THE COURT OF APPEAL

1994, No. 8
(Criminal)

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Coram: Hon. Silke, V-P, Macdougall, V-P and Mortimer, JA

Date of hearing: 5 May 1994

Date of judgment: 5 May 1994

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court): On 3rd December 1993 the applicant pleaded guilty before His Honour Judge Britton in the District Court to one offence of trafficking in a mixture containing 9.9 grammes of esters of morphine, one offence of possession of 7.86 grammes of salts of esters of morphine for the purpose of trafficking and one of simple possession of a very small quantity of cannabis resin.

2. He pleaded guilty after the close of the Crown case when, in the judge's view, the evidence by that time was overwhelming.

3. On 6th December he sentenced the applicant to a total of six years imprisonment, five years on the first count, one year on the second count, both sentences consecutive; and a concurrent sentence of 3 months on the third count.

4. The facts were simple. In September 1991 the applicant sent 21 grammes of a mixture containing the 9.9 grammes of heroin by post to a confederate Trudi Tuckwell in Australia. This was packaged in four greetings cards which were intercepted at the point of receipt. Apparently Trudi Tuckwell had paid A$750 for that consignment. The money went direct into the applicant's Hong Kong bank account. Consequently the applicant's address was raided and packed drugs in counts 2 and 3 were found in his room together with packaging paraphernalia and the blender which he had thrown out of the window when the raid took place. Also over $100,000 in cash was found which the judge forfeited. In the applicant's room similar greetings cards intercepted were recovered.

5. It was later discovered that Trudi Tuckwell had made three other remittances into the applicant's bank account, one in August 1991 and two others in September 1991. On arrest the applicant said the drugs found in his room were for his own consumption.

6. In sentencing the judge took as his guideline the tariff in Lau Tak-ming of five to eight years for the first count. In fact that tariff was not applicable to this count, for the tariff applies to salts of esters of morphine whereas that count was esters of morphine but, in the result, the judge's sentence of five years was a perfectly correct sentence in the circumstances of this case. His assessment of the totality of the sentences, and the small reduction which he made for the plea of guilty in the particular circumstances, were also, in the view of this Court, a perfectly correct and proper way of dealing the matter. This is not a sentence with which this Court will interfere. It was a proper sentence in the circumstances. We refuse the application for leave to appeal.

Representation:

Mr Ben Beaumart (DLA) for Applicant

Mr A.E. Schapel (Crown Counsel) for Crown/Respondent