HKSAR v. PUJA KURNIAWAN

CACC 30/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 30 OF 2003

(ON APPEAL FROM HCCC 301/2002)

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J U D G M E N T

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Hon. Seagroatt, J. (giving the judgment of the Court):

1. This is an application for leave to appeal against the sentence of 16 years' imprisonment for trafficking in almost 2 kgs of methamphetamine hydrochloride popularly known as 'Ice', a drug with potentially devastating consequences for the user and abuser.

2. The Applicant was arrested in the arrival hall at Lo Wu Control Point on 4 May last year. He had just arrived from Shenzhen. The drug was found in his possession. He admitted that he was taking it to Indonesia. The retail value of the drug was between $500,000 and $700,000.

3. When he appeared in court, Deputy High Court Judge Derek Pang, took a starting point of 24 years and applying one-third discount, reduced the sentence to one of 16 years to reflect the Applicant's plea of guilty. The judge was clearly following the guidelines set out by the Court of Appeal in Attorney General v Ching Kwok Hung [1991] 2 HKLR p. 125 which indicated that for quantities in excess of 600 gms, the range of sentence should be 18 years and upwards. Of course a mathematical progression is not to be adopted but clearly a quantity approaching 2 kgs is more than three times the minimum amount represented in the highest range of penalty guideline. The starting point adopted by the judge was entirely appropriate and accordingly the discount of one-third for the plea of guilty was equally appropriate.

4. The Applicant's sole ground of appeal is that there had been cases where a sentence of less than 16 years had been imposed for more or less the same amount of 'Ice', or even for larger amounts. This is true factually and the case he refers to HKCC No. 306 of 2002, HKSAR v Lai Yung Cheung, Lin Ming Sze and Shum Yu Hon, was concerned with quantities of 'Ice' in excess of that carried by this Applicant. In that case with defendants of different ages and perhaps different degrees of responsibility, the sentencing judge took a starting point of 21 years for two defendants, discounting the sentence to one of 13 years in both cases and for the third defendant, a starting point of 24 years discounting it to one of 15 years.

5. This court had said before and more particularly in HKSAR v Vhemy Axel-Supardi CACC No. 12 of 2000 (26 May 2000), when dealing with an application by a person who had pleaded guilty to trafficking in an almost identical amount of "Ice", that is about 2 kgs, and was sentenced to 15 years' imprisonment, that a starting point of 24 years was entirely consistent with the guideline. The fact that a judge in another case adopted a starting point lower than 24 years was no ground for interfering with a sentence which was not otherwise wrong in principle nor obviously excessive.

6. It follows that there may be minor variations to the discounted sentence to reflect the different circumstances of different defendants. Equally that is no basis for a ground of appeal suggesting disparity of sentence. Accordingly there is no substance in the ground advanced in this case and the application is therefore refused.