HKSAR v. YUEN WING CHUEN

CACC 436/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.436 OF 2005 

(ON APPEAL FROM DCCC 889 OF 2005)

_______________________

______________________

______________________

J U D G M E N T

______________________

Hon Yeung JA (giving judgment of the Court):

1.  On 2 July 2005, the appellant, Yuen Wing-chuen, was intercepted in Tsui Pak House, Tsui Ping Estate and found to be carrying (in 70 packets) 13.59 grams of a mixture containing 9.98 grams of heroin hydrochloride, and 70 tablets of midazolam. The applicant admitted that he intended to sell the dangerous drugs for a profit.

2.  The appellant has 18 previous convictions, most of which are drug-related, with 4 for either trafficking in dangerous drugs or conspiracy to traffick in dangerous drugs. For these 4 convictions, the applicant had served sentences ranging from 16 months’ to 8 years’ imprisonment.

3.  On 28 September 2005, the appellant appeared before Deputy Judge W Ng in the District Court on a charge of trafficking in dangerous drugs. He pleaded guilty to the charge and was sentenced to 4 years’ imprisonment.

4.  The judge took the view that a starting point of 5 years would be sufficient to reflect the quantity of drugs, including both the heroin and the midazolam tablets.

5.  However, the judge decided to adopt a higher starting point of 6 years because of the appellant’s previous convictions, echoing the following comments of P Chan J (as he then was) in R v Tam, Simon HCMA 489 & 490 of 1996:

“There are clear authorities to the effect that in a case where a person had a history of multiple offences of a similar nature in the past, the court is entitled to take a higher starting point. That is not to say that a defendant is to be punished twice. It is simply that while the defendant has been punished for the past offences, he clearly has not learnt any lesson and a greater deterrent sentence may be necessary to be effective.”

6.  With leave granted on 17 January 2006, the appellant now appeals against sentence.

7.  There is no basis for the appellant’s complaints, set out in his application, that the judge had imposed a 2-year sentence in relation to the midazolam. In fact, the judge expressly stated that the midazolam had attracted no additional sentence.

8.  In this regard, however, we note that the judge said he relied upon what was said in HKSAR v Lee Hang-wing HCC 83/1998, where a Deputy Judge of the High Court had stated that the “sentence for trafficking in midazolam should be pegged to tariffs for trafficking in heroin with a 20% discount”. Plainly, there is no proper foundation for this comment, and it should not, in the future, be relied upon.

9.  However, we also have to consider, as a matter of principle, whether the judge was right in increasing the starting point by 20% because of the appellant’s previous convictions.

10.  In R v Lau Tak-ming [1990] 2 HKLR 370, the Court of Appeal laid down the following tariff for heroin trafficking offences:

“ (a) Up to 10 grammes of narcotic: 2 to 5 years imprisonment.

  (b) Between 10 grammes and 50 grammes: 5 to 8 years.

  (c) Between 50 grammes and 200 grammes: 8 to 12 years.

  (d) Between 200 grammes and 600 grammes: 12 to 15 years.

  (e) Between 400 grammes and 600 grammes : 15 to 20 years.”

11.  The Court of Appeal at p 387 (C-D) expressly stated, “To allow for all other factors which properly lie for the consideration of the sentencing judge, the bands of the sentences will be wider than those set out in Chan Chi-ming.”

12.  The Court of Appeal had also said at p 386E, “Within the suggested bands (emphasis added) 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; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; is previous history of narcotic offences and matters of mitigation which may be advanced on his behalf.”

13.  The appellant was sentenced for trafficking in 9.98 grammes of heroin, and a five-year sentence is the upper limit under the tariff set out in Lau Tak Ming “for up to 10 grammes of narcotic”.

14.  It is a sad reality that drug traffickers often have a history of narcotic offences. Ms Tsang, for the respondent, has provided us with authorities to the effect that repeated drug traffickers could be sentenced beyond the limit of the bands suggested in Lau Tak Ming. (See HKSAR v Lau Kin Chung CACC 79/2003, HKSAR v Chan Hei Kam CACC 229/1999.)

15.  The tariffs laid down in Lau Tak Ming are meant to reflect mainly the quantity of dangerous drugs involved and are not engraved in tablets of stone. Where there are aggravating factors, such factors may cause the limit in each of the suggested bands to be exceeded.

16.  For a repeated offender, particularly a repeated offender of similar offences, a sentencing judge is entitled to enhance sentence hoping that such higher starting point will have a sufficient deterrent effect as “…the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned” and “the greater the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected”. (See HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 at p 833 D-F and p 834 B-C.)

17.  This case is an example, in our opinion, where the judge was right to have enhanced the sentence beyond the limit of the suggested bands on account of the appellant’s very serious criminal record, which makes this the fifth time he has been before the court for trafficking in dangerous drugs.

18.  It would make no sense that a sentence could be enhanced when the tariff lay at the lower end of the suggested band and not, as in the current case, when the tariff lay at the very top of the suggested band.

19.  If the quantity of drug involved were 0.03 grammes more, the tariff would be taken to the next band, with room for substantial increase. It would make no sense that the court should be bound by the 5-year limit because of this negligible weight difference.

20.  We are satisfied that the judge was entitled to adopt the starting point of 6 years. Accordingly, the appeal is dismissed.