R. v. TANG KAM KWONG

IN THE COURT OF APPEAL

1996, No. 183
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant, Tang Kam-kwong, pleaded guilty to three charges before Stock J in the High Court and was convicted and sentenced to a total of 17 years imprisonment. He now appears in person to seek leave to appeal against sentence.

2. The first charge was of manufacturing a dangerous drug contrary to ss.6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 in that he on 4th May 1995, inside Room 4, 55 Sai Yeung Choi Street, Mongkok, otherwise than and in accordance with the Dangerous Drugs Ordinance manufactured a dangerous drug, namely heroin hydrocholoride. The second charge was of trafficking in a dangerous drug contrary to ss.4(1)(a) and (3) of the Dangerous Drugs Ordinance in that on the same day, 4th May 1995, inside another flat in a different building, referred to as Room 2, 3rd Floor, Wing Ki Building, 125 Lai Chi Kok Road, Kowloon, unlawfully trafficked in a dangerous drug namely 386.89 grammes of a mixture containing 188.81 grammes of heroin hydrocholoride. The third count was possession of a forged identity card contrary to s.7A(1) of the Registration of Persons Ordinance, Cap. 177. He was sentenced on the first charge to a term of 17 years imprisonment; on the second charge, to 7½ years and on the third, to 18 months, all three terms to run concurrently.

3. The facts are quite simple. The flat, referred to as Room 4, was fitted with a daunting array of hardware for the manufacture of heroin as the judge put it. The manufacturing operation was sizeable and carried out with a degree of sophistication. There was no direct evidence of the quantities of heroin manufactured but there was clear evidence that it was of a much greater quantity than the quantity found in Room 4 and in the other flat referred to as Room 2 in charge 2. The judge, discarding in the applicant's favour other ways of assessing the quantities which indicated much larger quantities, took as the quantity that was manufactured that which in effect the applicant himself admitted manufacturing, i.e. on the evidence a quantity of a mixture that contained a total of the order of 1.2 kgs of pure heroin. That, the judge was entitled to do.

4. The judge correctly observed that it is well established that manufacturing attracts higher penalties than trafficking in dangerous drugs. He then addressed the tariff for trafficking in Lau Tak-ming [1990] 2 HKLR 381. Clearly the amount of 1.2 kgs fell into the "very large quantities" category. In respect of that, the upper terms of imprisonment limit in the courts has now well exceeded the 24-year starting point adopted by the judge, which, therefor upon that basis the judge was entitled to adopt, not to mention the scale and sophistication of the manufacturing operation. He discounted it by 7 years which was almost a third. Having regard to the applicant's lateness in pleading to the first charge, he could properly have allowed a significantly lesser discount. In that light we do not find the starting point wrong or the sentence of 17 years manifestly excessive or wrong in principle.

5. We do not say, however, that the manner in which the assessment of that sentence was approached was ideal but we think it adequate and see no reason to interfere.

6. The other two sentences being considerably shorter and concurrent cannot therefore affect the overall term of imprisonment against which the applicant seeks leave to appeal and which he wishes to have reduced. We content ourselves, therefore, in merely adding that having considered the facts, the judge's reasons and the two sentences, we see no reason why the latter should be regarded as manifestly excessive or wrong in principle.

7. Plainly, there is no merit in the applicant's complaints against any of the sentences and in particular against the totality of 17 years. We therefore refuse leave to appeal against sentence.