HKSAR v. LEE KWOK KEUNG

CACC5/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.5 OF 1999

(ON APPEAL FROM HCCC 135 AND 153 OF 1998)

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J U D G M E N T

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Burrell J (delivering the judgment of the court) :

1. The applicant Lee Kwok Keung seeks leave to appeal out of time against a sentence of 24 years' imprisonment imposed on 16 December 1998 by Deputy Judge Lugar Mawson (as he then was).

2. The applicant had been convicted after trial of two counts of trafficking in dangerous drugs. On the first count, the drugs involved were a mixture weighing 2.3 kilogrammes containing 1,555 grammes of pure narcotic, the narcotic being heroin hydrochloride, for which the sentence passed was 24 years imprisonment. On the third count, the drugs involved was a mixture weighing 350 grammes, containing 215 grammes of pure narcotic for which he received a sentence of 11 years imprisonment, to run concurrently. He had been acquitted on count 2, a charge of manufacturing dangerous drugs. Count 1 involved the joint possession by the applicant and another of the drugs seized from a flat which also contained other drug paraphernalia. It was effectively a drug store house. Count 3 involved the supply of drugs in question at a meeting place in the streets of Mei Foo in Kowloon.

3. The applicant's appeal against sentence was lodged approximately 8 months after his conviction. The reason for the delay contained in his affirmation in support states :

"I misunderstood that an appeal against sentence would prejudice an appeal against conviction."

4. His appeal against conviction had been lodged on 30 December 1998, but a notice of abandonment was subsequently lodged on 2 August this year.

5. Mr Wright, on the applicant's behalf, in effect advances a single ground of appeal, namely, that the learned Judges' starting point of 25 years for these two offences was too high and that the sentence passed was manifestly excessive. In support of that contention, he has drawn this Court's attention to the case of HKSAR v. Yau Po Hung Cr. App. No.245 of 1998 in which this Court allowed an appeal against a starting point of 27 years for 3 kilogrammes of narcotic and reduced it to 24 years. In that case, a number of other authorities were cited in an attempt to assist the Court to decide an appropriate level of sentences in cases involving large quantities of drugs over and above the top of the scales and tariffs laid down in R. v. Lau Tak Ming in which the top band attracting sentences of 15 to 20 years is between 400 and 600 grammes. Above 600 grammes, there is no tariff save that it should be over 20 years.

6. In the authority cited by Mr Wright, Mr Justice Nazareth VP, giving the judgment of the Court, said (and it seems necessary in this appeal to repeat it again) :

"This court has repeatedly stated that the particular circumstances of other cases and other sentences are not generally of assistance where they do not provide any guidelines or tariffs."

7. The weight and quantity of the drugs is not the only factor which determines the proper starting point. The sentencing judge must consider the overall criminality and the nature of the operation. He is in the best position to assess this, particularly after a trial. This Court will not interfere with a sentence solely on the ground that a slightly lower sentence had been passed in another case, where the weight of the drugs was somewhat higher, unless it is shown to be either wrong in principle or manifestly excessive. The sole question, therefore, for this Court to determine is, in all the circumstances of this case, was the starting point taken manifestly excessive?

8. In this case, the applicant was involved in a total amount of 1.8 kilogrammes of pure narcotic, that is approximately three times the cut-off point in the Lau Tak Ming tariffs. He was in joint possession of a flat which had been described as a drugs store house and was receiving a substantial quantity of drugs in the street. This is not a case of a naive youth being recruited as a courier for relatively small reward without appreciating the seriousness of what he was doing - even those cases attract sentences of over 20 years.

9. It seems to us that there is nothing in the facts of this case which warrants special leniency or consideration, and we consider that a 25 year starting point was within the proper range and within the sentencing judge's discretion, bearing in mind the overall criminality and the facts of this case. The learned Judge, as he was entitled to do, then generously discounted the sentence by 1 year to reflect the applicant's clear record. It was open to him to do this, but it does not necessarily follow that he would have been in error had he failed to do so.

10. In conclusion and for the reasons given, had this appeal been lodged within time, it would have been dismissed. Accordingly, as the reason given for being out of time is inadequate, we refuse leave and dismiss the application.