HKSAR v. YAN KAM FAI

CACC 288/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 288 OF 2004

(ON APPEAL FROM DCCC No. 318 OF 2004)

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JUDGMENT

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Hon. Yuen JA:

1. This is an application for leave to appeal against sentence. On 10 June 2004, the Applicant was tried before Chua D.J. on a charge of trafficking in dangerous drugs. The Applicant had on 2 February 2004 been arrested in Mongkok, Kowloon for trafficking in 54.52 grs of a mixture containing 39.93 grs of heroin hydrochloride. The Applicant pleaded guilty before the trial judge, and was sentenced to a term of imprisonment of 56 months.

2. The Applicant's grounds of appeal against sentence are that since he had admitted the offence to the police and had pleaded guilty to the charge in court, the sentence was too severe.

3. The sentence imposed by the trial judge was in accordance with the established tariff applicable to trafficking in heroin set out in R v Lau Tak-ming [1990] 2 HKLR 370. The Court of Appeal held in that case that 5-8 years' imprisonment would be the appropriate sentence (after trial) for trafficking in dangerous drugs containing between 10 grs and 50 grs of narcotic. In the present case, there were nearly 40 grs of narcotic in the mixture. Therefore, the trial judge's adoption of a starting point of 7 years was neither wrong in principle nor excessive.

4. The Applicant had admitted the offence and had pleaded guilty. To reflect that, the trial judge had given him the usual 1/3 discount. There were no other mitigating circumstances.

5. By reason of the above, there are no grounds for suggesting that the ultimate sentence of 56 months (being 2/3 of 7 years) was wrong in principle or excessive. Accordingly, leave to appeal against sentence is refused.

6. The Applicant should be informed that he is entitled to renew his application for leave to appeal to the Court of Appeal, but the effect of this refusal of leave is that the Court of Appeal would be free to direct, if it considers appropriate, loss of time, in other words, that the time under which he is in custody pending the determination of his appeal be excluded from reckoning as part of the term of sentence to which he is subject.