HKSAR v. JIM LUNG KEUNG

[English translation – 英譯本]
CACC 501/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

CRIMINAL APPEAL NO. 501 of 2000

(ON APPEAL FROM HCCC NO. 295 of 2000)

BETWEEN

_____________________

Judgment

_____________________

Hon Nguyen J (giving the judgment of the Court):

1. On 21 November 2000, Jim Lung Keung, the applicant for leave to appeal (i.e. the defendant), pleaded guilty in the Court of First Instance to two charges of trafficking in dangerous drugs.  Deputy Judge Toh sentenced him to 7 years and 8 months’ imprisonment.  The applicant now applies for a reduction of the sentence on the ground that it is excessive.

2. The trial judge adopted a sentencing approach of taking two starting points.  She treated the two offences separately and adopted a starting point for each of the two offences based on the amount of heroin involved in that offence.  For the first count, she took 3 years as the starting point and reduced the term to two years by reason of the applicant’s guilty plea.  As for the second count, the judge took 8½ years as the starting point and then reduced the term to 5 years and 8 months.  The sentences for the two counts were to run consecutively, making a total of 7 years and 8 months.

3. The facts admitted by the applicant were as follows.  On 22 June 2000, a team of plain-clothed Customs and Excise officers carried out an anti-drugs patrol in Mongkok area.  At about 7:30 p.m. on the same day, they saw the applicant near lamppost AA 56590 in Shantung Street.  The officers found the applicant suspicious and stopped him for a search.  A packet of drugs, namely the drugs involved in the first count, was found on him.  The officers asked the applicant what was in the packet, and the applicant replied that it was “white powder”.  Then one of the officers asked the applicant where he lived, and he told them his address.  The officers went on to ask the applicant whether there were other dangerous drugs in his home, and the applicant answered, “Yes, there is another three ounces and a half in my home.”  The officers then took the applicant to the address he disclosed for investigation.  A search was conducted at the said premises, whereupon the dangerous drugs involved in the second count were found.

4. In HKSAR v Chow Yu Chi CACC 359/2000, the Court of Appeal made the following observations:

… the judge adopted the somewhat laborious route of taking, for each offence, a separate starting point for each offence before making adjustments for totality. In circumstances such as these, where both offences were committed on the same day on closely linked facts, it would have been proper for the judge to have calculated the overall starting point by combining the weights of heroin in each charge to arrive at a total weight …

The approach taken by the judge in arriving at the two starting points reveals an error of principle. …

5. In the present case, Mr. Tam for the respondent has conceded that the trial judge had made an error of principle in sentencing.  The judge should have applied the above sentencing principle and arrived at an overall starting point on the basis of the combined weight of the dangerous drugs in the two charges, namely 87.37 grammes of heroin hydrochloride.  Following the sentencing guideline set out in Lau Tak Ming [1990] 2 HKLR 370, the overall sentence for the present offences should be 9 years.  This should then be reduced to 6 years on account of the applicant’s guilty plea.

6. Accordingly, we grant leave to appeal and, treating the hearing as the appeal, we allow the appeal and reduce the sentence from 7 years and 8 months to 6 years.  In other words, the applicant’s sentence is reduced by one year and 8 months.  To this extent, the appeal is allowed.