R. v. YIP SAU FUNG

IN THE COURT OF APPEAL

1996, No.52
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant pleaded guilty before Gall J. to two counts of trafficking in dangerous drugs. Her arrest on the 1st charge took place in Lockhart Road on 6th August 1995, when she was found in possession of 202.31 grammes of a mixture containing 122.64 grammes of heroin hydrochloride. The second charge alleged that she had trafficked in 1,147.2 grammes of a mixture contained 122.01 grammes of heroin hydrochloride on 6th August 1995 which was found when she was taken to the 1st floor of Welcome Mansion in Paterson Street. She was sentenced by Gall J. to six years on each of the charges. The sentences were ordered to be concurrent but partially consecutive to a sentence of five years which she was already serving. The effect of the order was that after two years of the charges then being served the six year sentence would be concurrent with the remaining three years imposed on the earlier charges. In all the applicant had 244 grammes of heroin hydrochloride. That would bring her into the 12-15 year tariff band set out in Lau Tak Ming's case.

2. The trial judge when sentencing said:

"Given your background, your plea of guilty and your previous good character, you are sentenced, in respect of the 1st count, to six years' imprisonment, in respect to the 2nd count, to six years' imprisonment; two counts to be served concurrently."

This was a very lenient sentence indeed as the starting point taken was one of nine years when the minimum starting point indicated by the guideline would have been one of 12 years. The applicant today asked that the sentences be made fully concurrent with the earlier sentence of five years. While we take into account all she has said, that is that she is an addict and that had fallen under the influence of triad criminals, we are nonetheless satisfied that we cannot properly interfere with what was in the circumstances a lenient sentence.

3. The application must be refused.