HKSAR v. CHUI WING FAI AND ANOTHER

CACC 76/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 76 OF 2002

(ON APPEAL FROM HCCC 332 OF 2001)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1. Chui Wing Fai and Leung Shun Fai, the 1st and 2nd Applicants respectively, were jointly charged in the Court of First Instance with one count of trafficking in a dangerous drug contrary to s. 4(1) & (3) of the Dangerous Drugs Ordinance. The drugs were 3.49 kilogrammes of a mixture containing 3.03 kilogrammes of heroin hydrochloride. Both Applicants pleaded guilty to this count before Deputy High Court Judge McMahon on 25 January 2002. The 1st Applicant was sentenced to a term of imprisonment of 15 years and 6 months. The 2nd Applicant was sentenced to a term of imprisonment of 15 years and 4 months.

2. Both Applicants now seek leave to appeal against sentence relying on the same grounds, namely, that they were simply couriers and not masterminds, and that they provided "important information" to the police. They represent themselves, legal aid having been refused them.

Facts

3. The facts are very simple; the 1st Applicant came into Hong Kong from the Mainland in a lorry on 19 June 2001, carrying the drugs with him in a rucksack. The lorry drove to a car park in Tsuen Wan where it stopped. The 1st Applicant then walked out of the car park with the rucksack and met the 2nd Applicant, who was waiting nearby. He handed the rucksack over to the 2nd Applicant. The police had been observing all this and they moved to intercept the Applicants. The rucksack was opened and the drugs were found. Both Applicants admitted that they knew the rucksack contained white powder and that they were acting as couriers for the heroin.

The sentencing

4. For the 1st Applicant, the judge took a starting point of 24 years in view of the large quantity of the drugs. He regarded the fact that the 1st Applicant had imported the drugs into Hong Kong as being an aggravating factor in his case. The judge then took into account the 1st Applicant's guilty plea; his clear record and his stable work history, and reduced his sentence to one of 15 years and 6 months. He gave the 1st Applicant a reduction that was 6 months greater than the usual one-third discount given to a person who pleads guilty to reflect the fact that he had a clear record. This was an overgenerous discount. This court has said, on many occasions, that the accused's previous good character counts for very little in sentencing for drug trafficking offences, and that on a guilty plea the credit for it is subsumed into the one-third discount given to reflect that plea.

5. For the 2nd Applicant, the judge took a starting point of 23 years. This starting point was one year less than that taken in respect of the 1st Applicant for the reason that the 2nd Applicant had not imported the heroin into Hong Kong. The 2nd Applicant had a criminal record, albeit not drug related and for offences committed over ten years ago when he must have been a teenager. The only mitigating factor in the 2nd Applicant's case was his guilty plea and the judge gave him the usual one-third discount to reflect that in sentencing him to serve 15 years' and 4 months' imprisonment.

Discussion

6. With regard to the Applicants' claims that they were no more than couriers, in HKSAR v Manalo [2001] HKLRD 557, this court held that the guideline cases for sentencing drug traffickers, whilst not strait-jackets, were there to provide and maintain consistency of sentence between all offenders and consistency is largely based upon the weight of the drugs involved. This court laid to rest any misconception that there are distinctions, which are often irrational or speculative, to be drawn between traffickers who are couriers, or storekeepers, and those who play more aggravated roles, such as manufacturers, wholesalers and the "bosses" who send couriers out onto the streets. Those who play the aggravated roles can expect to receive longer sentences than couriers and storekeepers; but the couriers and storekeepers themselves should not expect to receive less than the tariff sentence. As heroin was involved in this case, the applicable sentencing tariffs are those set out in R v Lau Tak-ming & Others [1990] 2 HKLR 370.

7. With regard to the Applicants' claims that they provided "important information" to the police, Ms Louisa Lai, for the Respondent, tells us in her written submission that what little information they were able to give was valueless, and these matters were in fact known to the judge at the time he sentenced the applicants. Should the information prove of value in future, it is of course open to the Applicants to petition the Executive for clemency.

Decision

8. The sentences both Applicants received are in accordance with the sentencing tariffs set out in Lau Tak-ming and there is no merit in either of the applications, they are accordingly dismissed.