R. v. YIP WAI YEE

IN THE COURT OF APPEAL

1996, No. 617

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. This applicant faced one charge of trafficking it being alleged that he, at Carvel Restaurant, on 3rd August 1995, in Tai Kong Lane, Tai Po, unlawfully trafficked in 13.09 grammes containing 11 grammes of heroin hydrochloride. It was a stop and search operation in which he was stopped and searched and the packet of drugs were found in his left sock. When asked what it was he said it was white powder. Under caution he made an admission that he was employed to deliver the drugs.

2. At trial he pleaded not guilty to the charge of trafficking but was prepared to admit simple possession. He was, after trial, acquitted before Judge C.B. Chan in the District Court of the trafficking charge but found guilty of the charge of simple possession.

3. The judge when sentencing said that he had taken into account his four previous convictions for similar offences, noted that he was serving at a sentence for a similar offence at the time of sentencing. She said that she considered the amount and the latent risk involved in the possession of such a relatively large quantity in the hands of a drug addict and bore in mind the possible damage to the community posed by that risk. She also bore in mind that he had been prepared to plead guilty to possession at the outset. Given these factors, she took a starting point of two years' imprisonment and then imposed a sentence of imprisonment for one year and six months and ordered that it be served consecutively to the term that he was then serving.

4. The applicant today has urged that his father is very ill in China and that he wishes to be able to return to his father and he has also asked that the sentence be not made consecutive but ordered to be concurrent with the sentence which he was then serving.

5. The trial judge rightly considered the latent risk factor and rightly in our arrived at a sentence before plea of two years. The reduction then of six months is one which was properly within her discretion to make. The only matter that we have to consider is whether the applicant has advanced humanitarian grounds of such weight that we are called upon to interfere. We should also add that the trial judge was right in our view in making the sentence consecutive. As to the humanitarian grounds, there is nothing that has been said that would warrant interference by this court. The sentence was a proper one. The application must be dismissed.