HKSAR v. LEUNG MAN KEI

CACC60/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 60 OF 2001

(ON APPEAL FROM HCCC353 OF 2000)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant pleaded guilty to trafficking in a large quantity of dangerous drugs in the High Court before Deputy High Court Judge Toh. He was sentenced to 16 years 8 months imprisonment and seeks leave to appeal against this sentence.

2. Particulars of the charge were as follows:-

"LEUNG Man-kei, on the 5th day of July, 2000 at Ground Floor, No. 12H, Shan Tsuen, Wang Toi Shan, Pat Heung, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 1,993.08 grammes of a mixture containing 915.88 grammes of heroin hydrochloride, 70 tablets containing a total of 1.28 grammes of midazolam maleate and 2,437 tablets and some tablet fragments containing a total of 58.82 grammes of estazolam."

3. So far as the charges are concerned it is relevant in this application to add that the applicant was also charged with manufacturing a dangerous drug, contrary to s. 6(1)(a) and 6(2) of the Dangerous Drugs Ordinance, Cap. 134. This charge was not proceeded with by the prosecution and was left on the court file.

4. There was nothing of any great significance on the facts of the case. The police having obtained a search warrant searched two separate premises which were under the control of the applicant. Shortly after the dangerous drugs were found the applicant admitted that the drugs were his. He said that they were jointly owned by himself and two other men. He was not prepared to reveal the identity of these men to the authorities.

5. In essence the complaints which are made by Mr McGowan on behalf of the applicant are that the Judge adopted a starting point of 25 years which was too high and gave the applicant insufficient credit for his plea, relatively good character and cooperation with the police.

6. When passing sentence the Judge said this in relation to the circumstances of the offence. This is on page 3 of the record.

"The facts of the case is that the defendant was arrested by police officers who had laid ambush on him in Pat Heung village, and upon his arrest, he led the police to where he lived at No. 18 Wing Ning Village, Pat Heung, where some blenders and drinking straws and empty resealable plastic bags were found. Subsequently, heroin traces were found on the blenders found at the location.

On the same day, the police also raided the subject address in the 1st count, and inside those premises were found the large quantity of dangerous drugs, which is particularised in the 1st count. It is obvious from the equipment found in those premises that that was a centre where the defendant mixed the dangerous drug, heroin, and also the midazolam and estazolam.

The defendant was subsequently taken to this second location and the defendant had keys to these premises and he also confessed to the police. He admitted to the police that this place was used for mixing heroin powder with additives and pills and also used to store the dangerous drugs. He said these drugs belonged to himself, a person called Ah Ming and another called Ah Chow. It is also clear from the admitted facts that the defendant's fingerprints were also lifted from a rubbish bin and a blender inside the flat."

7. It would appear from this passage that notwithstanding the fact that the manufacturing charge was not proceeded with, the Judge has placed some weight on the fact that activities in the nature of manufacturing did form part of the offence upon which the applicant was being sentenced.

8. With respect to the Judge she should not have taken cognisance of these activities.

9. In our view the starting point should have been 22 years rather than the 25 years adopted by the Judge.

10. So far as the discount given by the Judge is concerned, she was correct in adopting a discount of 33%. This is the appropriate discount for a timeous plea of guilty. The applicant could have given information concerning his associates but declined to do so. That was entirely a matter for him. However, as he declined to do so it was not open to the Judge to grant any additional discount to the applicant. It has to be added that the personal characteristics of the defendant are not normally weighed in the balance on an offence as serious as this.

11. We allow the application and treating it as the appeal we quash the sentence of 16 years 8 months and substitute in its place a sentence of 14 years 8 months. To this extent this appeal is successful.