R. v. WONG YIU WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1213 of 1996

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J U D G M E N T

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1. The appellant was convicted after trial of the offence of trafficking dangerous drugs. The quantity involved was two plastic straw packets containing 0.39 grammes of a mixture containing 0.34 grammes of heroin hydrochloride. He was sentenced to 2½ years imprisonment and he now appealed against sentence.

2. The facts as found by the magistrate was that the appellant sold the drugs to another person in O'Brien Street, Hong Kong.

3. The magistrate adopted a three year imprisonment starting point having regard to trafficking in dangerous drugs was a very serious offence and it was very prevalent in the area of Wanchai in his experience.

4. He gave a six months discount because, although the appellant had 11 previous convictions, this was the first conviction of the kind. He also took into account that the appellant was caught red handed and showed no remorse. Mr Wong for the appellant submitted that three years as a starting point was not in accordance with R. v. Lau Tak Ming [1990]2 HKLR 370 and that 2½ years was manifestly excessive.

5. The guidelines in Lau Tak Ming state that for up to 10 grammes of narcotics the sentence would be 2 - 5 years. Lau Tak Ming also states that :

"If there exits a clear record or a plea, then the Sentencing Court may take one or both such factors, as the case may be, into account when arriving at what it considers to be the proper discount. ... If an offender receives payment in kind for committing the very offence with which he himself is charged or if he, by selling, perpetuates the very evil at which it is the duty of the Courts to strike, it can avail him little."

6. The adoption of three years as a starting point was within the range set down in the guidelines. The appellant did not have a clear record nor did he enter a plea. On the other hand he was, as found by the magistrate, caught red handed and showed no remorse. He had 11 previous convictions. There was indeed nothing that merits a discount and the magistrate could have been more than generous. The scale of sentence in Lau Tak Ming depends on the quantity of narcotics. The smaller the quantity, the less likely it would attract a longer sentence. For the quantity of 0.34 grammes of narcotics, three years as a starting point, although within the range, was too high.

7. The sentence of 2½ years overall is manifestly excessive. The appeal is allowed and the sentence of 2½ years set aside and a sentence of 2 years imprisonment is substituted.