HKSAR v. SOO CHI-WA

CACC 413/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 413 OF 2003

(ON APPEAL FROM HCCC NO. 108 OF 2003 )

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1. On 22 November 2002, the applicant-So Chi-wa, who has four previous convictions but none relates to dangerous drugs, entered Hong Kong at the Lowu Control Point. He was stopped by Customs Officers and taken to a room for inspection.

2. The Customs Officers found a packet wrapped in gift paper tucked at the rear waistband of the applicant's trousers. The applicant admitted that the packet was No. 4 heroin and claimed to have bought it in the Mainland for $70,000. He also said he would get a reward of a few thousand dollars to bring the packet to Hong Kong as a courier.

3. The packet of dangerous drugs seized from the applicant contained 349.74 grammes of a mixture with 186.84 grammes of heroin hydrochloride. Its retail value was over $180,000.

4. At the committal, the applicant pleaded guilty to the charge of trafficking in the dangerous drugs seized from him. He was then brought to appear before Nyugen J in the High Court for sentence.

5. Nyugen J adopted a starting point of 11 years and discounted it by one third on account of the guilty plea. The applicant was sentenced to seven years and four months' imprisonment.

6. The applicant seeks leave to appeal against sentence out of time. There has been a delay of about two months.

7. The only ground advanced by the applicant is that sentences in other similar cases were shorter than his by 10 months. He neither identifies those other cases nor offers any reason for the delay in his written application. He tries to identify those cases in the course of the delivery of this judgment. However, the identification of those cases is not, in our view, important.

8. There is a clear tariff of sentences in drug trafficking cases. For cases involving 50-200 grammes of heroin, the proper starting point is 8 to 12 years' imprisonment. (See R v Lau Tak-ming & Ors [1990] HKLR 370.) A greater amount of drugs, of course, attracts a higher sentence.

9. If sentences in other cases are less severe than the aforesaid tariff, there must be special reasons. They have no application to the applicant.

10. This case involves 186.84 grammes of heroin, very close to 200 grammes and hence the starting point of 12 years.

11. Far from being manifestly excessive or wrong in principle, the starting point of 11 years adopted by the judge is in fact lenient.

12. The applicant's guilty plea has been reflected by the one-third discount.

13. The sentence of seven years and four months is proper with no room for further reduction.

14. We, therefore, refuse leave to appeal against the sentence out of time.