HKSAR v. PAU SZE CHIU AND ANOTHER

CACC199/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 199 OF 1998

(ON APPEAL FROM HCCC 441 OF 1997)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 26th March 1998, the Applicants (D1 and D2 at trial) confirmed the pleas of guilty they had earlier entered at the Magistrates' Court when they appeared before Saied J. in the Court of First Instance. All the charges related to trafficking in heroin hydrochloride. In the first of these, both applicants were charged with trafficking in a mixture containing 2,813.92 grammes. In the second and third charges, D1 admitted trafficking in mixtures containing 28.53 grammes and 152.27 grammes respectively. In the fourth and fifth charges, D2 admitted trafficking in mixtures containing 70.15 grammes and 661.71 grammes respectively. In the result, therefore, D1 had to be sentenced for trafficking in 2,994.72 grammes and D2 for trafficking in 3,545.78 grammes of heroin hydrochloride. The judge, having taken a starting point of thirty years, imposed sentences totalling eighteen years' imprisonment on each of the applicants. They now seek leave to appeal against their sentences.

2. The facts were extremely simple. Officers attached to the Narcotics Bureau carried out a surveillance operation on a car park in Wong Tai Sin on 10th May 1997. At just after 4.30 p.m., D1 drove a car into that car park. D2 was in the back of the car, and a female sat in the front passenger seat. D1 and D2 got out and D1 went to the boot of another car which had been unattended previously. He placed a travel bag into the boot of that car. D1 and the female passenger then drove off in that car and they were stopped as they left the car park. D2 was also stopped as he tried to leave the car park in the car which had originally brought both applicants to the scene. After their arrest, they took equal responsibility for the drugs which were in the travel bag (charge 1). Inside the car which D1 was driving at the time of his arrest were found two other quantities of drugs for which he took responsibility (charges 2 and 3). In D2's case, further drugs were found at his home address and his place of work (charges 4 and 5 respectively). Both men were entirely cooperative with the police and it goes without saying from the pleas tendered in the magistrates' court that they could not have admitted their guilt any earlier.

3. In the court below, the judge was invited to give a discount of 40% to the applicants and to treat them on an equal basis. The judge very properly accepted that this would be an appropriate course to adopt, having regard to the nature of the mitigation which had been advanced and which it is unnecessary to repeat. As to the roles played by each applicant, it appears to be clear that they were couriers and not organizers, and that has been confirmed by Miss Ko on behalf of the Respondent.

4. The only question which arises in this application is whether the starting point of thirty years taken by the judge was, in the circumstances, manifestly excessive.

5. We think, having considered the written submissions in advance of the hearing and a number of authorities which were very helpfully brought to our attention by both sides, that the starting point on the particular facts of this case was too high and that it should have been twenty-seven years on the first charge.

6. Accordingly, we shall give leave and, treating the hearing as the appeal, we allow the appeal by reducing the sentence imposed on charge 1 for both applicants from eighteen years to sixteen years' imprisonment. Whilst the other sentences were ordered to run concurrently and are effectively academic, we nevertheless reduce the sentences. In D1's case, the sentences of six years and ten years for charges 2 and 3, in order to give effect throughout to the 40% discount, will be reduced to five years and nine years respectively. In D2's case, the sentences of eight years and sixteen years for charges 4 and 5 will be reduced to seven years and twelve years respectively. The effect is that both applicants will now serve a sixteen-year sentence.