HKSAR v. CHEUNG KAI WING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.259
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 21st April 1998, this Applicant pleaded guilty to charges of trafficking in heroin before Deputy Judge Lugar-Mawson (as he then was). The mixture in count 1 contained almost 1.3 kgs. of heroin and in count 2 the narcotic weight was just over 3.5 kgs. The Applicant was sentenced to concurrent terms of 15 years and 16 years' imprisonment respectively, and now seeks leave to appeal against his sentence.

2. His notice of appeal indicates that he believes that the starting point was too high. Today he has added to the grounds which he advanced in writing by informing us that there was substantial mitigation placed before the judge and, indeed, he has repeated some of the material which the judge had in mind when he passed the sentences. In particular, the judge did say:

"I accept that you are not a major player in this particular drug trafficking enterprise. I accept the mitigation put forward by your counsel that you got involved because you incurred a heavy debt in relation to the repairs of a friend's lorry which you crashed while driving it. It was very foolish of you to think that you could pay your way out of your financial problems by helping others in this trade."

3. The Applicant has also emphasized that he has consistently been frank and co-operative with the police but this was also taken into account by the trial judge. We have had the advantage of seeing the material placed before the trial court, including matters which ought to have been dealt with under the procedure in HKSAR v Tse Ka-wah, (1998) 3 HKC 74. Some parts of the mitigation should not have been dealt with in open court, and a part of the remarks made by the sentencing judge should also not have been made in public. We appreciate, however, that Tse Ka-wah had not then been reported although it must be said that the procedure in R v Sivan, which this court followed in Tse was well-documented in the textbooks. The judge only needed to say, in the event that this court procedure had been followed, that he had taken into account the mitigation given in chambers or in camera as the case may have been.

4. Having considered all the facts, which revealed that this 24-year-old Applicant, as he then was, had been recruited as a courier for the heroin, the judge took a starting point of 25 years for the larger amount of heroin found at the Applicant's address and 24 years for the smaller amount found on him. The Applicant is no stranger to the courts, and although his previous 5 court appearances are not in respect of drugs' offences, the discount accorded to the Applicant was in our judgment beyond criticism.

5. The application has no merit and it must, therefore, be dismissed.