THE QUEEN v. LAU TIK FU

-----------------

JUDGMENT

-----------------

Mortimer JA (giving the judgment of the Court): This applicant was convicted on 15 July 1994 of two offences of trafficking in dangerous drugs before Deputy Judge Yeung and the jury. On 29 July after the judge had received reports he was sentenced to 2 years on the first count and 7 years on the second count.

2. The offences, took place on 26 April 1993.

The facts

3. The brief facts are as follows:

4. He was stopped by Customs men on 26 April in a village in the New Territories. He had a packet in his hand which he threw away. It was later discovered that this packet contained a mixture of 3.05 gms containing 2.08 gms of heroin in ten plastic straws. A struggle ensued in which both the applicant and customs officers sustained minor injuries. That was the first count.

5. Later the applicant took the officers to a village hut and inside showed them a further quantity of dangerous drugs. There was 82.38 gms of a mixture containing 55.45 gms of heroin and 279 gms of cannabis. The heroin was in 271 straws and the cannabis was divided into 3 plastic bags. In a cautioned statement he made a full confession and said that he was being paid $500 a day by someone to sell the drugs.

6. At his trial he showed no remorse. Indeed he advanced a defence which was a complete denial, saying that the customs officers had lied, that they had planted the drugs and fabricated his statement and that he had signed the statement consequent upon threats and inducements.

7. Initially he applied for leave to appeal against the convictions but he abandoned that at the beginning of this hearing. He pursued his application for leave to appeal against the sentences.

8. After the trial in which he had made those allegations, it is not surprising that there was no mitigation by way of remorse that the judge could take into account. He asked for reports and considered them with some care before the sentences were passed. In passing sentence, the judge said:

9. The judge followed the guidelines but having regard to his age reduced the sentence by 1 year.

10. From the reports which were in front of the judge at the time, the history of the trial and the attitude of the applicant, there can be no doubt whatsoever that the sentence passed by the judge was entirely proper. It was one which was certainly not wrong in principle and nor was it manifestly excessive.

11. The applicant comes before this court and advances in his written grounds - which he emphasised orally - the following:

12. In amplification he told this court that he wanted to have an opportunity to reform himself.

13. We were impressed at the earlier hearing that this young man may have served some of his sentence and become remorseful, so now does want to turn over a new leaf and try to reform himself and is now showing an understanding of what he has done. In those circumstances we asked for another report. This is now before the court. This report deals with the present circumstances. Part of it reads:

"After LAU was sentenced to seven years' imprisonment for the offence on 29.7.94, he was arranged to serve his sentence in Pik Uk Correctional Institute. His behaviour and performance in the prison was reported to be satisfactory. As far as concern, he was able to behave himself properly and never did he make any trouble. He showed regret for his misdeed and hoped that a lenient sentence could be passed on him."

14. Finally, the officer making the report says:

"In the interest of his reform, I am of the opinion that LAU may stand a chance of success in turning over a new leaf if given due and adequate social intervention. In this light, the training centre programme deemed to be a suitable solution for LAU's rectification."

15. Having considered these new circumstances - repeating what we have already said that the judge's sentence was perfectly correct in the circumstances before him - we are impressed that there may be some slight chance that this young man now wishes to reform himself and is showing remorse for his past behaviour. In these circumstances we have decided to take a most unusual course and to give him leave to appeal against his sentence, to treat this hearing as the appeal itself, to allow the appeal and substitute for the sentence of imprisonment a period in a Training Centre.