HKSAR v. NG PO LAM

CACC 114/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 114 OF 2004

(ON APPEAL FROM DCCC NO. 31 OF 2004)

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J U D G M E N T

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1. The applicant was convicted on his own plea before Judge Day in the District Court of one charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. Acting on information, the police waited at Lo Wu for the applicant who arrived at the border, and tailed him for some way. When they arrested the applicant at the Kwai Chung MTR station, they found in his possession a cigarette box which had in it 41.90 grammes of a mixture containing 35.25 grammes of heroin hydrochloride. Having considered R v Lau Tak-ming [1990] 2 HKLR 370 and HKSAR v Chan Pui-chi [1999] 2 HKLRD 830, the judge adopted a starting point of 7 years and having reduced it for the guilty plea and other mitigating factors, imposed a sentence of 50 months' imprisonment on the applicant.

3. The applicant now seeks leave to appeal against sentence for the reason that it was manifestly excessive. He specifically raises four grounds:

(1) The Court's sentencing guideline is 5 to 8 years' imprisonment for 10 to 50 grammes of heroin. On that basis, a sentence of 6 years 6 months as a starting point should be more appropriate.

(2) The judge did not give him the full one-third discount for his guilty plea.

(3) He had co-operated with the police but the judge did not accept this factor to reduce sentence.

(4) He had only 29 previous convictions, but the judge stated that he had 39 and the judge could have been unduly affected by this inaccuracy.

4. On ground (1), according to Lau Tak-ming, for trafficking in a quantity of drugs between 10 to 50 grammes, a sentence of 5 to 8 years' imprisonment would be appropriate. The applicant argues that the starting point adopted by the judge was obviously in excess of the tariff. However, the judge had specifically mentioned Chan Pui-chi, which is authority for a slightly higher sentence to be imposed on a recidivist. He had obviously considered the importation of the drugs by the applicant from the Mainland to Hong Kong as an aggravating factor, which is also correct. In my view, the judge had not acted against principle when adopting a starting point of 7 years.

5. Ground (2) is without merit. From the starting point of 7 years, namely, 84 months, the judge reduced it to 50 months. Two-thirds of 84 months equals 56 months, which is more than 50 months.

6. 50 months is in fact about 60% of 84 months. The reduction made by the judge was about 40%, exceeding the one-third discount for a guilty plea. The reduction of another 6 months over the one-third discount demonstrates that the judge had given weight to the co-operation given by the applicant to the police. Ground (3) is without merit.

7. On ground (4), the applicant argues that the judge had wrongly thought that he had 39 previous convictions whereas in fact he had only 29. The judge did mention 39 previous convictions when sentencing the applicant. He said:

"5. Mr Ng has appeared before the court on 30 occasions, and has built up an impressive 39 convictions on those appearances. It is a criminal career spanning almost 40 years, the last resulting in a prison term of 5 years and 2 months for trafficking in drugs.

8. The number of 39 convictions was obviously a mistake. However, I do not think that this mistake affects the general tenor of the judge's comment, which is that the applicant was a recidivist and had a lengthy criminal career. Moreover, from the record it can be seen that the applicant had 12 previous convictions relating to drugs and two of which were for trafficking in heroin. Despite the careless mistake made by the judge, I do not consider that it is a matter of any consequence towards the sentence passed on the applicant.

9. In all the circumstances, I am not satisfied that there is any arguable ground raised by the applicant, and accordingly I refuse leave to appeal against sentence.