HKSAR v. CHIU KWOK WAI and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.168
(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. At the outset of the application, the 1st Applicant (D1) abandoned his application for leave to appeal against sentence and it was dismissed. For the sake of clarity, I shall refer to the Applicants as D1 and D2, which were the numbers allocated to them in the trial court below.

2. On 2nd March 1998, D1 pleaded guilty in the High Court to trafficking in a mixture containing 80.14 grammes of heroin hydrochloride (count 1). The plea was entered after D1 had given evidence on the voir dire but before a ruling had been made on admissibility.

3. On 3rd March 1998, D2 pleaded guilty to trafficking in a mixture containing 26.15 grammes of heroin hydrochloride (count 3), having heard the ruling on the voir dire that the confession in his case was admissible.

4. Both defendants had been caught red-handed in possession of the drugs which were found in different quantities, as reflected in the charges, upon them, together with a further amount under a seat in the car in which they were seen as occupants.

5. On 24th March 1998, having obtained a number of reports about D2, Stock J. sentenced D1 to six years' imprisonment and D2 to three years and nine months' imprisonment.

6. D2 gives as his reason for making this application for leave to appeal against his sentence that he was 14 at the time of the events in question and that by the time he came to be sentenced he was 15. He states that he was unaware that he could be imprisoned for such a long time.

7. We can say straightaway that there is not the slightest merit in the application that is made by this Applicant.

8. The judge went to quite extraordinary lengths to set out with minute precision, taking into account every possible detail, why he was sentencing each defendant to the terms he imposed. Those sentences were fully in accordance with the Lau Tak-ming guidelines. Whilst D1 has abandoned his application, the fact remains that he was considerably older than D2, but the judge expressed the view that he had no doubt that D2's role was considerably more assertive than D1's, making it unlikely that D1 was the principal offender.

9. The learned judge was considerably troubled by the extreme youth of D2 but, in giving his reasons extending to almost four pages of closely-typed foolscap paper, he set out exactly why a training centre was inappropriate under the circumstances of this case. This was, in the judge's opinion, no innocent youngster who had strayed into the world of drugs on account of naivety. On the contrary, this was a streetwise, self-assured young criminal who knew exactly what he was doing. We can see no reason why we should interfere with the reasons provided by the trial judge. The sentence imposed was entirely justified . This application is dismissed.