HKSAR v. SHERPA CHHEWAN GYABU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.220
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. The Applicant appeared before Deputy Judge Geiser in the District Court on 31st March 1998 facing a charge of trafficking in approximately 13 kgs. of cannabis resin worth about $780,000. The offence was committed at the New Customs Arrival Hall at Lo Wu Control Point. He pleaded guilty and was sentenced to 4 years' imprisonment. The Applicant now seeks leave to appeal against his sentence.

2. In his original Grounds of Appeal, the Applicant pointed out that he had pleaded guilty and not wasted time or costs and had committed no previous criminal offence.

3. In his further grounds contained in a letter dated 29th July 1998, he sets out a number of points that have no materiality to this application. Having said that, the Applicant should understand that other similar cases reported in the newspapers were decided on their own facts. We have to look at the facts of this case to decide whether the judge was wrong in passing the sentence that he considered appropriate.

4. There was one point made by the Applicant in his letter which we have given considerable thought to, and this is whether the judge took the correct starting point.

5. The judge, when he passed sentence, said:

"The suggested guidelines for sentencing are to be found in the case of Attorney General v Tuen Shui-ming & another, in Application for Review No.12 of 1994, and indicate a sentence of 4 years' imprisonment upwards for over 9 kgs. of cannabis resin."

6. The judge went on to say that this indicated to him that a six-year starting point was justified. He then deducted one-third to take into account the Applicant's plea of guilty and other mitigation.

7. The judge was right to take the Tuen case as providing guidelines for sentence in this kind of offence. However, we consider that whilst a mathematical progression is not always appropriate, the guidelines in Tuen indicate that a five-year starting point would have been more appropriate. To this extent we find substance in what the Applicant has put before us.

8. Accordingly we propose to grant leave to appeal. We shall treat this hearing as the appeal and, allowing the appeal, reduce the sentence to one of 3 years and 4 months by taking 5 years as the staring point and reducing that by one-third. To this extent the appeal is allowed.