R. v. WONG HAK MING

IN THE COURT OF APPEAL

1995, No. 42
(Criminal)

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J U D G M E N T

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

1. The applicant seeks leave to appeal out of time against an order made by His Honour Judge Kilgour pursuant to section 3 of the Drug Trafficking (Recovery of Proceeds) Ordinance Cap 405 and the sentence which was imposed in this case.

2. After sentencing the applicant to five years' imprisonment following his guilty plea for trafficking in dangerous drugs Kilgour DJ heard an application under section 3 for the confiscation of the proceeds of drug trafficking. The prosecution agreed the order with the defence.

3. The explanation given for the application being made out of time was that the problem which we will be referring to concerning the confiscation of assets only manifested itself after the period for lodging appeals had expired. We consider the explanation to be a sufficiently convincing one to enable us to grant leave to hear the application out of time.

4. Miss Hopkin for the applicant submitted that the starting point adopted by Kilgour DJ of seven years' imprisonment was too high. Although she accepted that it was within the Lau Tak-ming guidelines she contended that as the amount of dangerous drugs came within the lower range of the five to eight years under the guidelines, seven years was too high. We cannot accept that contention. The quantity of dangerous drugs is only one of the factors which is considered. In the present case there was evidence of a degree of organisation in the trafficking activities and the trial judge was fully entitled to take cognisance of that. In the present case the applicant was deeply implicated in what amounted to a fairly sophisticated distribution of dangerous drugs. We do not think that the applicant's sentence of five years' imprisonment can be interfered with.

5. So far as the confiscation order was concerned the amount which was agreed to be payable was $307,754.50. This was based upon available realisable property. Kilgour DJ made a further order pursuant to s8 of the Ordinance that if the amount was not paid within 12 months a further term of 18 months' imprisonment would have to be served by the applicant consecutive to the term he had just been sentenced to.

6. It would appear that substantially Kilgour DJ's order has been complied with. However it has not proved possible to realise one of the assets referred to as realisable property in the order namely the Hutchison portable telephone which was valued at $7000.

7. The consequence of this technical non-compliance with the order is that the applicant has to serve the consecutive sentence we have referred to.

8. An attempt was made to rectify the situation in the District Court by seeking to vary the order pursuant to s15 of the Ordinance. This however was to no avail as the District Court has no jurisdiction to make orders under the section.

9. The Court of Appeal does have the powers of the High Court Judge and can therefore be seized of the matter.

10. Having regard to the circumstances of this case we propose varying the order made by Kilgour DJ by reducing the amount of the order by $7,000 and deleting reference to the value of $7,000 placed on the telephone and amending the time for compliance with the order from 12 months to 18 months thus ensuring that the order has now been complied with and that the consecutive sentence will not have to be served. To this extent the application is successful and the appeal is allowed.