HKSAR v. Wong Man Hon

CACC 88/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 88 OF 2000

(ON APPEAL FROM HCCC 414 OF 1999)

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Coram: Hon. Stuart-Moore VP and Woo JA

Date of Hearing: 28 April 2000

Date of Judgment: 28 April 2000

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 18 February 2000, the Applicant pleaded guilty in the Court of First Instance before Deputy Judge Longley to three charges and he was sentenced to a total of twelve years' imprisonment. He now seeks leave to appeal against sentence on the ground that this was manifestly excessive.

2. The Applicant has today expanded on this original ground by informing the court that prior to his recent troubles, he had been married for eighteen years and was responsible for supporting his wife and 11-year-old son and also his elderly mother. He told the court that he had been a hard worker earning $12,000 to $13,000 a month which was ample to support his family. He stated that he began to gamble some time ago and that he was a drug addict, with the result that he became unable to support his family. With that background, he took out a large loan from a loan shark who later threatened to set fire to his home and to harm his family members. For this reason, the Applicant said that he succumbed to the temptation put in his path by a man he called "Hung Chai" by agreeing to bring into Hong Kong smuggled cigarettes. Unexpectedly, according to the Applicant, he was then given drugs to bring in as well, and he was tempted by the offer made to him because, in return, he was to be supplied with drugs for his own consumption and with higher remuneration.

3. The principal charge (count 2) to which this application effectively relates, was in respect of trafficking in a mixture containing just over 507 grammes of heroin hydrochloride. This large quantity of drugs was found hidden in the Applicant's underpants after he had been stopped at Lok Ma Chau Control Point for customs clearance, having driven his lorry from the mainland to Hong Kong. The Applicant admitted that he was assisting a man called "Hung Chai" to deliver heroin to Hong Kong. The judge, in passing sentence, took a starting point of seventeen and a half years' imprisonment and reduced this to eleven and a half years to take into account the mitigation.

4. We can say straightaway that the starting point selected by the judge was entirely appropriate for this sizeable quantity of drugs and it was in full accordance with the guideline tariffs set down in R v Lau Tak-ming and Another [1990] 2 HKLR 370.

5. The starting points of nine months' imprisonment for possession of a mixture containing 2.23 grammes of heroin hydrochloride (count 1) and twelve months' imprisonment for importing an unmanifested cargo of half a million cigarettes (count 3) worth $650,000, where the duty that would have been evaded was $380,000, cannot be criticised as having been too long. So far as the starting point on count 3 is concerned, as the judge recognised, this was in fact a lower starting point that would usually be taken. The judge, taking into account the pleas, imposed eight months' imprisonment on count 3, of which only six months was to run consecutively to the sentence imposed on count 2, and he passed a concurrent sentence of six months on count 1.

6. The overall sentence of twelve years' imprisonment was wholly proper and was, if anything, a shorter sentence than the Applicant might have received, bearing in mind the seriousness of the offence in count 3. This alone could well have attracted a far longer sentence than six months which the Applicant is effectively serving for it. The mitigation advanced today in court on behalf of the Applicant takes the matter no further at all. The judge gave full credit for the pleas and imposed a sentence that cannot possibly be criticised as having been too long.

7. The application, therefore, is dismissed. It is an application which is without the slightest merit and we order that three months of the time which the Applicant has spent in custody shall not count towards his sentence.

Representation:

Mr Robert K.Y. Lee, SGC of the Department of Justice for the Respondent.

Applicant in person.