R. v. CHEUNG MOON CHEUNG

IN THE COURT OF APPEAL

1994, No. 570
(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, Cheung Moon-cheung, pleaded guilty before Ryan J on 31st October 1994 to two counts of trafficking in dangerous drugs. He was sentenced to a term of 3 years imprisonment on one count and 13 years imprisonment on the other, both to run concurrently. He now applies for leave to appeal against those sentences.

2. The facts are that on 10th February 1993 at Tate's Cairn Tunnel, Shatin, he was stopped in his car by the police. They searched him and found two red lucky-money packets in a pocket of his jacket. The envelopes contained heroin wrapped in plastic. He said that he had intended to deliver them for someone and it had nothing to do with him. He was arrested. The police proceeded to search his home when they found a briefcase containing more heroin. He agreed that heroin was in his possession.

3. The heroin found in his jacket was found to be 55.12 grammes of a mixture containing 20.01 grammes of salts of esters of morphine, and that in his briefcase to amount to 1,299.17 grammes of a mixture containing 507.51 grammes of salts of esters of morphine. That found in his jacket was the subject of the 1st charge and that in the brief case to the 2nd charge.

4. For the applicant, Miss C. Remedios submits that the judge was wrong in the particular circumstances to take a starting point at the very top end of the sentencing range in respect of an amount of heroin that fell near the middle of the relevant quantity range in the tariff in R v Lau Tak-ming (1990) 2 HKLR 370. That submission was made by Miss Remedios against the following background: the defendant has a clear record and no relevant conviction. It was tacitly accepted by the judge that he was in severe financial difficulties. He is married and has two daughters, aged 10 and 11. He had worked for about 10 years in a garage and then as a driver for 4 years. Then he is said to have become a coolie and to have operated a wholesale green grocery business. He was in severe financial difficulties and borrowed $50,000 from loan sharks. It was in response to pressure from the loan sharks that he agreed to make deliveries of heroin.

5. As I have indicated, he pleaded guilty and Miss Remedios points out in his favour that his degree of involvement was relatively minor. He was coerced into making deliveries. She submits that there is no indication that he was to benefit personally in the way traffickers normally do but rather was a victim of loan sharks.

6. The material category inLau Tak-ming is that of 400 to 600 grammes in which the relevant range of sentence is 15 to 20 years. Whereas 20 years at the very top end of that guideline range, the quantity of heroin found was virtually at the middle. In submitting that the judge ought not to have taken 20 years as the starting point, Miss Remedios seeks support in the judgment of Silke V-P at p. 386 of Lau Tak-ming where he pointed that:

"Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved ..."

Here, of course, as I have already pointed out, the profit that could be derived was minimal, if anything; the basis the judge tacitly accepted indicates that all he could expect was to get the loan sharks off his back. The quantities were not substantial, such evidence as there is, points to previous good conduct. The applicant pleaded guilty. Mr Bruce, for the Crown, very properly accepts this was not done at the door of the court, and indeed that the prosecution did not have to actively prepare for trial. Mr Bruce also very properly accepts that the starting point is higher than it should have been.

7. It is apparent from that starting point he adopted that the judge gave a discount of 35%. That also, Mr Bruce does not quarrel with, taking all the circumstances into account, "the swings and roundabouts" as he puts it.

8. Thus, neither the quantity nor the circumstances called for a starting point at the very top of the relevant range. There were no aggravating factors; on the contrary some of the circumstances are of a mitigating nature. We are satisfied, having regard to all the circumstances, that the starting point was indeed too high. Without entering into any mathematical exercise, we think, adopting a broad approach along the lines of the discount allowed by the judge and taking a lower starting point, an appropriate sentence should be 11 years in totality. Accordingly, we grant the application for leave to appeal, treating it as the hearing of the appeal, we allow it and reduce the sentence on the second count to 11 years. That being concurrent with the lesser sentence on the first count, will be the total sentence.