HKSAR v. NG CHI WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 391
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty before Deputy Judge Wong in the Court of First Instance to one count of trafficking in a dangerous drug and one count of assaulting a police officer in the execution of his duty. For the drug offence, he was sentenced to 8 years imprisonment and for the assault offence, he was sentenced to 6 months imprisonment consecutive. The total sentence was further reduced to one of 7 1/2 years imprisonment on account of his youth. The applicant now applies for leave to appeal against sentence on the ground that the sentence was too lengthy. He also asks the court to take into consideration his family background and that he is now remorseful.

2. The applicant was stopped and searched by patrolling police officers. He was then carrying a paper bag. This bag was found to contain what was subsequently found to be 355.75 grammes of a mixture containing 208.19 grammes of heroin hydrochloride. A struggle ensued and the officer who searched him was assaulted by the applicant and injured in his shoulder, knee and fingers. The officer was subsequently assess to have suffered 1% disability as a result of the injures.

3. The applicant was a student and was almost 18 years old at the time of the offence. The deputy judge called for Training Centre and Detention Centre suitability reports before sentence. These reports set out the applicant's background and family circumstances and they recommended a period of disciplinary training. There was nothing else significant in terms of mitigation in these reports. Apart from his age, the deputy judge found no other mitigating circumstances except his plea of guilty.

4. Having regard to the quantity of heroin being 208.19 grammes the deputy judge took 12 years as the starting point for the drug offence and 9 months consecutive for the assault offence. After giving the appellant 1/3 discount, he arrived at the sentence of 8 years for the drug offence and 6 months for the assault offence, making a total of 8 1/2 years. Because of the young age, he further reduced by 1 year, so that the total sentence came to one of 7 1/2 years imprisonment.

5. For the quantity of heroin involved in the drug charge, the starting point of 12 years imprisonment was well within the guidelines. The officer had suffered serious injuries in the assault and 6 months after plea for that type of assaulting a police officer in the execution of his duty is not excessive. For such a serious drug offence, young age unless it is extreme youth, has very little weight as a mitigating factor. The deputy judge was in fact generous when he further reduced the total by another year on account of the applicant's youth. The sentences imposed are neither wrong in principle nor manifestly excessive. The application for leave to appeal against sentence must be refused.