HKSAR v. LEE SIU LUNG

CACC 296/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 296 OF 1999

(ON APPEAL FROM DCCC 1426 OF 1998)

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J U D G M E N T

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

1. The applicant pleaded guilty before His Honour Judge Wright in the District Court to a charge of possession of dangerous drug. He was sentenced to imprisonment for two years and 8 months. He now seeks leave to appeal against that sentence.

2. The facts, which were admitted by the applicant before the judge, are these.

3. In the afternoon of 11 September 1998, two police officers were patrolling in plain clothes inside Cheung Sha Wan MTR Station. They saw the applicant acting suspiciously near the exit inside the station. The officers intercepted him and revealed their police identity. The applicant was questioned and searched. Inside the bag, which he was carrying, the officers found something wrapped in a newspaper. When this was unwrapped, there was a transparent plastic bag containing some white substance which was suspected to be dangerous drug. When he was asked, the applicant admitted that the white substance was "white powder".

4. The applicant was arrested and cautioned. In reply, he said, "Ah Sir, please give me a chance, it is for my own consumption only."

5. When the plastic bag was subsequently examined by the Government Chemist, it was found to contain 27.14 grammes of a mixture containing 22.75 grammes of heroin hydrochloride.

6. In a statement which he wrote to the Court, he complains that he had been sentenced by the judge on the basis of trafficking and this was not fair to him. He refers to several Court cases where the sentences passed were less than the sentence that he received. Lastly, he says his early plea of guilty and saving Court time would be an additional mitigating factor in his favour. He says that the drug was for his own consumption and a sentence of 32 months is therefore excessive.

7. Before us, he says that he has nothing to add to what he has written to the Court.

8. In passing sentence, the judge particularly noted the applicant's early plea of guilty and his cooperation with the police. Despite the fact that he absconded while he was released on bail, the judge did not take that into account as a factor against him.

9. Section 8 was amended on 26 June 1992 when the maximum sentence for possession of dangerous drug was increased from three years to seven years. This clearly reflects the serious nature of the offence and the concern of the legislature and the community. In his reasons, the judge observed :

"This is a very large quantity in respect of an offence of simple possession. Indeed, for that offence it is the largest quantity that this court has encountered."

10. He went on to say at page 9 of the record :

"However, it must be that this quantity of narcotic is to be regarded as one of the larger quantities likely to come before the District Court. If it had been an offence under section 4 an appropriate sentence in respect of this quantity would be of the order of 6 years imprisonment. It is not such an offence, of course, and I merely use that by way of illustration."

11. Earlier at page 8, the judge refers to a decision of this Court in Criminal Appeal No.39 and 40 of 1993 and said :

"The Court of Appeal in that case went on to say :

'Provided that, when the Crown, as it did here, charges only a section 8 offence, the sentencing court bears in mind that there is still no offence known to law as 'unproven trafficking', courts can, in our judgment, properly give effect to the intentions of the legislature by imposing sentences higher than the norm which pertained before 26 June 1992 and which take into account the quantity of the drug concerned.'"

It is quite clear that the judge had not sentenced the applicant as if he was trafficking in dangerous drugs.

12. 22.75 grammes of pure heroin are by no means a small quantity and if the applicant had been charged and convicted of trafficking, he would stand to receive a sentence of between five to eight years' imprisonment under the guideline laid down in R. v. Lau Tak-ming [1990] 2 HKLR 370.

13. Moreover, the applicant has an appalling criminal record, many of which were drug or drug related offences. We note from his criminal record that his last offence was for trafficking in dangerous drugs and he was sentenced to a term of imprisonment of two years on 11 July 1997. It is quite clear that he committed the present offence only a short while, perhaps in a matter of days, after his release from prison.

14. The judge took a starting point of four years which, in our view, is entirely proper and there is nothing to cause us concern.

15. In all the circumstances of this case, we are satisfied that the sentence is neither manifestly excessive nor wrong in principle. The application for leave is refused.