HKSAR v. MOK KOON MING

CACC 374/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2000

(ON APPEAL FROM HCCC 53 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 18 August 2000, the Applicant, aged 36, pleaded guilty in the Court of First Instance before Deputy Judge A. To to a charge of manufacturing heroin, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. He was sentenced to thirteen years' imprisonment against which he now seeks leave to appeal.

2. The facts were straightforward. On 6 September 1999, police officers mounted an operation in the vicinity of a stone house at Lot No. 284, Wah Shan Tsuen, Sheung Shui, which was surrounded by metal fencing. It had a metal gate at the entrance.

3. At 3.00 p.m., police saw a private car arrive outside the entrance. The driver, who was later identified as Wong Bik-fai (Wong), alighted from the vehicle and walked towards the entrance. The police stopped Wong. They took from him a bunch of keys and using these, opened the metal door at the entrance.

4. On entering the stone house which Wong had indicated was his, the police found the Applicant sleeping on a bed inside. The premises were then searched and, amongst other things, the police found:

1. (next to the bed), two metal stands and a metal mould, and, on top of the metal stands, a hydraulic jack together with two pieces of metal;

2. (near the metal stands), two cartons containing a block of suspected heroin, a number of plastic bags containing suspected heroin and heroin adulterating substances, two brushes, two sieves, two plastic spoons, a bowl, a chopstick, a blender motor base and several blender cups;

3. (inside the drawer of a desk), several plastic bags containing suspected heroin and heroin adulterating substances, a cutter, an electronic balance and a quantity of empty plastic bags;

4. (on top of the refrigerator), two hammers;

5. (under a table), another carton containing two plastic bags containing suspected heroin and heroin adulterating substances.

5. The police questioned the Applicant about these items. He stated that all of them belonged to him. He was then arrested and cautioned by the police and he replied: "Ah sir, all the white powder, mould and jack etc. are mine and it has nothing to do with Ah Fai (Wong)."

6. The full mixture containing the suspected heroin in seventeen separate plastic bags seized by the police weighed 455.28 grammes. This was found to contain 67.55 grammes of heroin hydrochloride. A substantial amount of heroin adulterating substances including antipyrine, caffeine and theophylline were found in the other plastic bags. In addition, the government chemist detected traces of heroin on the hydraulic jacks, the sieves, the blender motor base and cups, the spoons, hammers, chopsticks, metal stands and mould as well as on the filter of the air-conditioner inside the stone house. A fingerprint was identified on the hydraulic jack as belonging to the Applicant and traces of heroin were found in his hair, on his fingernails and on some of his clothes.

7. When the Applicant was later interviewed, he admitted he had adulterated, mixed and treated the heroin using the paraphernalia found in Wong's house. He also said that the heroin had been obtained from China and that he intended to sell it to drug addicts after mixing it with the additives. The retail value of the heroin was just over $139,000.

8. The judge, in passing sentence, stated that:

"Looking at the paraphernalia that you have, it cannot be regarded as a really small home-made sort of operation."

He went on to say:

"There are, indeed, no established tariffs for this sort of offence, but having gone through a lot of decisions I have found that they more or less adopt a starting point of around 20 years. That I consider as reasonable for this sort of offence. Say, for example, with the 67.55 grammes of heroin in the drugs that were found in your premises, it would attract something like 8 to 12 years' imprisonment and had you not been stopped you would be producing batches of drugs which would create batches of 8 to 12 years' imprisonment. So 20 years is not at all a wrong starting point.

So I adopt a starting point of 20 years. I give you slightly more than one third discount because of the very forceful mitigation offered by your counsel, but really, I must say, I cannot give you too much discount because of the reason that I have explained, namely, a financial reason cannot be an excuse; secondly, this is a very serious offence with serious consequence. So I can only give you 7 years' discount and I sentence you to 13 years' imprisonment."

9. The case to which the judge was specifically referring, when adopting a starting point of twenty years' imprisonment, was R v Cheung Wai-kwong and Anor (1997) 3 HKC 496. In that case, where sentences of twenty-one years' imprisonment were imposed, there was no evidence of any measurable quantity of dangerous drugs found inside the premises although there was an irresistible conclusion to be drawn that the police had been deliberately prevented for two hours from entering the premises, which effectively amounted to a drugs factory, to enable the defendants to destroy as much evidence as they could of the drugs in their possession.

10. The Applicant's sole ground of appeal in the present case relates to the lighter sentence received by another prisoner, who happens to be his cellmate, in a very similar case to his own. In fact, as the Applicant now knows because of an analysis of the sentences which were passed in the Court of First Instance for manufacturing dangerous drugs during the year 2000, it is apparent that the Applicant's sentence falls slightly below the average imposed on others. This analysis of eleven cases provides no detail of the factual background but it does serve to illustrate from the pleas which were tendered in each case that by and large about twenty years has been adopted as the starting point in most cases of manufacturing dangerous drugs. We only need to mention this because it may provide some comfort to the Applicant to have a better overall picture of what has happened in similar cases to his own.

11. We are bound to say that we are not concerned with whether a particular prisoner's sentence, which has come to the Applicant's knowledge, was more lenient than it should have been. Rather, the concern of this court has to be focused on whether the Applicant's sentence was manifestly excessive. In the circumstances of the present case, we are satisfied that the judge was fully entitled to have taken a starting point of twenty years. Whilst the quantity of heroin found by the police bore some relevance to sentence, it was by no means the only, or even necessarily the most important, matter to be considered. The Applicant was in sole charge of an operation which, judging by the paraphernalia available to him, enabled him to manufacture heroin in substantial quantities.

12. We are unable to find any justification for interfering with the sentence imposed by the judge. Accordingly, the application is dismissed.