HKSAR v. YEUNG CHUN KIN

HCMA 977/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 977 OF 2003

(ON APPEAL FROM KTCC 3659/2003)

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J U D G M E N T

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1. The Appellant had pleaded guilty to one charge of trafficking in a dangerous drug, namely 13 packets containing a total of 2.55 grammes of a mixture containing 2.12 grammes of heroin hydrochloride and 13 foil packs containing a total of 35 tablets containing 0.48 grammes of midazolam. The learned Magistrate sentenced him to 22 months' imprisonment.

2. The facts to which the Appellant had admitted show that on the day of the offence, the Appellant was under observation by the police. He was seen to be acting in a furtive manner at about 8 p.m. that night, the police officer saw the Appellant tape the dangerous drugs to the underside of a stool with doubt-sided tape and this happened in the vicinity of a cooked food stall. Then the Appellant was seen to put the stool down on the ground. Subsequently, he was approached by a male. This male was subsequently charged and he was the 2nd Defendant in the case. The 2nd Defendant then gave what appeared to be some $100 banknotes to the Appellant. Then subsequently the Appellant was seen returning to the stool and taking something from the underside of the stool and then gave a packet to the 2nd Defendant who walked away.

3. The Appellant had some 21 previous convictions, although none to do with drugs. The learned Magistrate had heard full mitigation by counsel who represented the Appellant. The learned Magistrate also considered the guideline in the case of R v Lau Tak Ming [1990] 2 HKLR 370 that the sentencing range should be 2 to 5 years' imprisonment. And after considering that, he then decided a starting point of 33 months was appropriate and he gave the relevant discount thus reducing the sentence to one of 22 months and he did not increase the sentence because of the midazolam, because the learned Magistrate rightly considered that it was of such a minor quantity that it did not justify any increase in the sentence.

4. The Appellant appeals today on the grounds that he considered the sentence was manifestly excessive as he wants an early release in order that he can take care of his aged mother and that his wife had left him. All this was, as Ms Shine correctly pointed out put, before the learned Magistrate by his counsel in mitigation. The learned Magistrate had considered everything said on behalf of the Appellant before arriving at the sentence imposed. The sentence that was finally imposed by the learned Magistrate was a reasonable one and an appropriate one and can in no way be criticized as being excessive or manifestly excessive.

5. I see no ground to interfere with the learned Magistrate's sentence in this case, so the appeal is dismissed.