THE QUEEN v. TSUI CHI PONG

IN THE COURT OF APPEAL

1995, No. 663
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. This is the judgment of the court.

2. The applicant was convicted on his own plea to one count of trafficking in a dangerous drug and was sentenced to 25 years' imprisonment. This is his application for leave to appeal against sentence.

3. By his Grounds of Appeal, he complains that the sentencing judge places too much emphasis on his previous convictions and his attempt to avoid arrest. He also complains that insufficient discount was given for his plea of guilty and, in adopting a starting point of 30 years, the judge had departed from the guidelines laid down in R. v. Lau Tak Ming [1990] 2 HKLR 370. He argues that his sentence was manifestly excessive and/or wrong in principle.

4. In November 1986, the applicant was convicted of one charge of possession of dangerous drug for unlawful trafficking and sentenced to imprisonment for two years and nine months. In December the same year, he was again convicted of two counts of possession of dangerous drug for the purpose of unlawful trafficking and sentenced to imprisonment for ten years on each count, sentences to run concurrently.

5. At the time of the present offence, he had been out of prison for some one year and eight months.

6. The admitted facts are as follows. At about 5:50 am on 7 February, a police party on patrol observed the applicant sitting in the driver seat of a private car parked by the side of the road. The engine of the car was running and the sidelights were switched on. One of the police officers went up to the car and stood beside the driver's seat. When he asked to inspect a brown paper bag lying on the front passenger seat, the applicant pulled the gear lever backwards. The police officer immediately ordered the applicant to desist and produce his driving licence. However, the applicant ignored him and drove off.

7. The applicant fled in his car, pursued by the police. What followed must be described as at least a reckless driving on the part of the applicant. The result of which was that the police found it necessary to fire a few shots at the applicant's car before it finally came to a halt after colliding with another police car.

8. When the applicant finally came to a stop in his car he was ordered to alight. However, the applicant ignored the order and kept on turning the ignition key in vain and was finally subdued after a short struggle.

9. The drugs found weighed 5,268.54 grammes. It was a mixture containing 4,530.82 grammes of heroin hydrochloride. The market value of the heroin was about $7.6 million.

10. In passing sentence, the judge considered the case of Lau Tak Ming, and he also cited a passage in the judgment of Litton VP in the case of R. v. Ho Chi Ming, Criminal Appeal No. 447 of 1994, where the Vice President said:

" A sentencing judge is perfectly entitled to have regard to the fact that deterrence is necessary in order to abate the incidents of serious crime. There is no doubt that the present case is serious. In our judgment there is nothing wrong in principle in adopting, as the judge did, a starting point of 25 years' imprisonment."

11. In that case, the amount of drug was 1.213 kilogramme as opposed to 4,530.82 grammes in the present case.

12. The judge went on to say:

"The defendant has two previous convictions of a similar nature and taking into account also the fact that he did his best to avoid arrest and crashed his vehicle only after no less than four shots were fired by the police, I am of the view that these matters and his conduct upon being stopped by the police dis-entitle him to full discount on his plea of guilty. I consider that I should allow him a discount of 5 years."

13. Two points were made at the hearing before us this morning. Firstly, it is argued that the 30 years adopted as the starting point by the trial judge is too high in all the circumstances, particularly having regard to the guidelines laid down in Lau Tak Ming. Secondly, it is submitted that the discount given by the learned judge should be more generous and it is suggested that a one-third discount would be about right.

14. In our view, the offence committed by the applicant was a very serious one, particularly, in the light of the quantity of drug involved. It is trite law that discount should be given for a plea of guilty. In this case, the applicant readily pleaded guilty in court though his conduct i.e. his attempt to flee, was not such as to indicate that he was readily remorseful at the time he was discovered by the police. We do not say that the discount given by the trial judge was ungenerous to any great extent but, nevertheless, we are of the view that a more generous discount ought to be given in all the circumstances of the case.

15. In our judgment, a discount of something like 25% would have been appropriate. For these reasons, we allow the application, treat the hearing of the application as the hearing of the appeal, allow the appeal and adopting a starting point of 30 years, reduce the sentence from 25 years to 22 years.