R. v. HUI CHI WAI

IN THE COURT OF APPEAL

1995, No. 353
(Criminal)

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J U D G M E N T

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

1. The applicant seeks leave to appeal against the sentence of 7 years' imprisonment imposed upon him for trafficking in dangerous drugs.

2. The applicant was shortly before midnight on 28 June 1994 sitting in a Honda motor car with another man at Chatham Road in Tsimshatsui. Police officers approached the vehicle and asked the applicant and the other man to get out of the car. The applicant took a bag off his shoulder and placed it on the passenger's seat of the car. The police officers searched the bag and found the dangerous drugs which are the subject matter of the charge in this case. The amount of the dangerous drugs found in the bag was 184.031 grammes of a mixture containing 64.760 grammes of salts of esters of morphine.

3. The applicant pleaded not guilty to this charge but was found to be guilty by a jury after a trial before Deputy Judge Burrell as he then was.

4. In the perfected grounds of appeal Mr Zia Reshid Bey Murtyzade for the applicant contends that the sentence was wrong in principle as Burrell J had failed to adequately consider reports on the applicant as the applicant was only 20 years old at the time of the offence. He went on to contend that the learned trial judge had failed to consider sentencing the applicant to a training centre.

5. He cited The Queen v. Cheung Wing Wai and others unreported being Criminal Appeal No. 289 of 1992. The youths in question in that case pleaded guilty. They were aged 16 and 17 years old at the time of the offence. It was a case of robbery. It has to be borne in mind that this was an entirely different situation to that which faced Burrell J in the present case.

6. Clearly Burrell J did give careful consideration to all of the options which were available to him. When passing the sentence he said:

"I have read and considered two reports about you: one from the Probation Service and one from the Correctional Services Department. Both reports confirm and I accept that you have a caring family who are not unnaturally worried and concerned about your present predicament. I agree that it is tragic that you have let yourself down and your family down by getting involved as a drug courier of a large quantity of heroin of considerable value.

Mr Buchanan, on your behalf, has urged me to impose a training centre order in your case. I have considered carefully his request but I regret that I cannot accede to it. I acknowledge that you are considered to be mentally and physically suitable for admission. However, I am not persuaded that such a sentence would be appropriate for a twenty-year old defendant after trial trafficking 184 grammes of a mixture containing 64 grammes of pure heroin."

7. The sentence which was imposed was less then the sentence indicated in the Lau Tak-ming guidelines. It would appear that Burrell J did make a reduction in the sentence to reflect the relative youth of the applicant and his previous clear record. However it must be stated that the applicant was fortunate to receive any reduction in his sentence on account of his youth as at his age this was not a factor which he was entitled to benefit from.

8. Taking everything into consideration this is an appeal without merit. The application is dismissed.