WONG SHEK PANG v. R.

IN THE COURT OF APPEAL

1993, No 433
(Criminal)

___________

_______________

J U D G M E N T

_______________

Nazareth, J.A. (giving the judgment of the Court):

1. On 9th August 1993 the applicant, Wong Shek-pang, was on his own plea of guilty, convicted by His Honour Deputy Judge W. Wong on two counts of trafficking in dangerous drugs. The first count related to 74.35 grammes of a mixture containing 36.92 grammes of salts of esters of morphine. On that he was sentenced to imprisonment to six years. The second count related to 495.80 grammes of a mixture containing 244.52 grammes of salts of esters of morphine. He was sentenced on this to imprisonment for 12 years, the two sentences to run concurrently. He now seeks leave to appeal against those two sentences.

2. The facts shortly were that on 28th October 1992 the applicant was seen to come out from a building on Lion Rock Road. A motor vehicle was parked outside. He opened the driver's door, sat in the driver's seat, was seen to unlock the steering-wheel and was approached by Customs and Excise Officers who found six packets of dangerous drugs in the left inside pocket of the jacket he was wearing. These were found to contain the quantities of the mixture containing the salts of esters of morphine which formed the subject of the first charge.

3. Some keys were found on him. He was led back to his flat. Entry was gained with those keys. In a room in the flat were found five plastic bags and 30 plastic packets of the mixture containing the salts of esters that formed the subject of the second charge. Also found there were paraphernalia including a mixer, hammer, postal scale, scissors, brushes and other items including polythene bags which were of the sort used to pack and repack dangerous drugs.

4. The applicant admitted under caution that the six packets of dangerous drugs found on his person were his and that he knew that they were white powder. He was to take them to Castle Peak Road to effect a sale. He also admitted under caution that the dangerous drugs found in the flat were his. He had bought them for $75,000 and it would take him two weeks to sell. He expected to make a profit of $20,000. He admitted that various packaging items were used to crush the dangerous drugs and repackage them.

5. The facts I have recounted formed part of the statement of facts which he admitted.

6. In sentencing him, the Deputy Judge simply said this:

"We all know what nuisance drugs have caused to this society. It has brought misery to the users and directly affected the users' families and relatives, and in turn affects the society. I am sure you are aware of the serious consequences drugs may cause. Yet, with open eyes, you went into drug trafficking.

There are no mitigating factors except that you have pleaded guilty, thereby saves public money and the court's time. There are no exceptional circumstances which I can take into consideration to depart from the guideline in sentencing. So in respect of the first charge you go to prison for six years, and for the second charge, twelve years; sentences to run concurrently."

7. Mr Christopher Grounds, who appears for the applicant, submits that the sentences are out of line with the tariff in Lau Tak-ming. Mr Saw, for the Crown, does not oppose that submission. It can clearly be seen that the total of narcotic substance found on the applicant's person and in his flat amounted to 281.44 grammes which is about 100 grammes into category (d), i.e. 200-400 grammes in Lau Tak-ming for which the guideline is 12 to 15 years. Breaking that category down into four bands to represent the four years in that category, he submits that the sentence should have been about 13 years. He submits that that follows the approach adopted by this Court in R. v. Ng Man-keung Cri. App. No.194 of 1993 (unreported).

8. We accept those submissions. It appears that the Deputy Judge did not appreciate that the tariff applied to sentences that were imposed after trial.

9. Accepting therefore a starting point of 13 years, we think a discount should obviously have been given for the plea of guilty. A discount of 25% would have produced a little short of 9 years; but, perhaps being a little less generous, we think that the appropriate period should be rounded off to 9 years.

10. We accordingly grant the leave sought, treat the hearing of the application as the hearing of the appeal, allow the appeal, quash the sentence of 12 years and substitute a new sentence of nine years on the second count, leaving the sentence on the first as it stands. The sentences being concurrent, that would produce a total of nine years.