HKSAR v.SAWANGWONG CHAOWALIT

CACC180/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 180 OF 2006

(ON APPEAL FROM DCCC NO. 226 OF 2006)

______________________

______________________

________________

J U D G M E N T

________________

Hon Ma CJHC (giving the judgment of the Court) :

1.  On 20 April 2006, the Applicant was convicted on his own plea in the District Court of two charges : one of trafficking in dangerous drugs, the other of simple possession.  The dangerous drugs relating to the two charges comprised 9.94 grammes of a crystalline solid containing 9.10 grammes of methamphetamine hydrochloride, that is “ice” (the trafficking charge) and 2.74 grammes of a crystalline solid containing 2.73 grammes of ice and 0.66 grammes of a powder containing 0.64 grammes of ice.  The Applicant has applied for leave to appeal against the sentence that was imposed.  The sentence that was imposed by H H Judge Chua were terms of imprisonment of 50 months for the trafficking charge and 12 months for the possession charge, 3 months of which were to be served consecutively to the sentence imposed for the 1st charge.  The total sentence was 53 months’ imprisonment.  Yeung JA refused leave on 30 August this year.  The present application is a renewed one.

2.  The relevant facts were summarized in the Judge’s Reasons for Sentence : -

“        On 17 February 2006 police officers armed with a search warrant went to premises on the second floor of No.62 Bute Street in Mongkok.  The police, taking advantage of a woman who was opening the door, entered the flat and saw the defendant emerging from one of the sub-let rooms.  He had a green shoulder-bag but on seeing the officers quickly retreated to his room and slammed the door shut.  The defendant would not open the door but after a couple of kicks the door was opened.  The bag the defendant was seen carrying was lying on the bed.  Inside the bag were 17 packets of plastic sheets containing a total weight of crystalline solid of 9.94 grammes.  Near one end of the bed was a CD rack with a CD jacket in which were three packets.  In the refrigerator was a flask with a straw from it.  In the flask was liquid containing traces of methamphetamine hydrochloride.  Inside a plastic drawer near the end of the bed was a glass phial containing powder which was analysed to be ‘Ice’.  The two quantities of ‘Ice’ found in the CD jacket and this phial add up to 3.37 grammes of ‘Ice’.”

3.  In sentencing the Applicant, the Judge adopted a starting point of 75 months for the trafficking charge which was reduced to 50 months on account of the plea of guilty.  For the possession charge, the Judge used a starting point of 18 months, reduced to 12 months with the one-third discount.  Three months of this sentence was ordered to be served consecutive to the sentence for the trafficking charge resulting in total in a term of 53 months’ imprisonment as we have earlier mentioned.

4.  In our view, the sentences were entirely in line with the applicable tariffs.  For the trafficking charge, the Judge referred to the tariffs fixed by this court in AG v Ching Kwok-hung [1991] 2 HKLR 125 and she was right to do so.

5.  The Applicant has submitted in his written submissions that insufficient account was taken by the Judge of the fact that he had a clear record.  In our view, the Judge was right not to give a further discount above the one-third already given for the guilty plea.  In the circumstances and given the type of offences with which this case is concerned, a clean record does not merit a further discount.

6.  For these reasons, the renewed application for leave to appeal against sentence is dismissed.