R. v. HO CHI MING

IN THE COURT OF APPEAL

1994, No. 447
(Criminal)

- Headnote -

Sentencing - Trafficking in heroin - It was appropriate for the sentencing judge to select 25 years as the starting point where the quantity of salts of esters of morphine was in excess of 600 grammes - The "cut-off" limit to sentencing in serious cases of trafficking is life imprisonment - Attitudes have hardened in the courts since the case of The Queen v. Lau Yau-yuen [1991]2 HKLR 278.

IN THE COURT OF APPEAL

1994, No. 447
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. The applicant Ho Chi-ming pleaded guilty before Leong J in the High Court on 12 August 1994 to one charge of trafficking in dangerous drugs. He was sentenced to 17 years' imprisonment. Through counsel he now seeks leave to appeal against that sentence.

2. The charge was to this effect. On 8 September 1993 at the Departure Lounge of Kai Tak Airport he unlawfully trafficked in 1.39kg of a mixture containing 1.213kg of salts of esters of morphine. The applicant was about to board a flight to Taiwan when he was apprehended. The heroin was packed in condoms in 17 packages tightly wrapped around his back and abdomen by adhesive tapes. He had been offered $40,000 to bring the heroin to Taiwan. He was then aged 23 years.

3. The judge in sentencing the applicant took as his starting point 25 years' imprisonment. Counsel argues before us that the starting point selected by the judge was too high and that it should have been 20 years. He relies upon a passage in the judgment of this court in R. v. Lau Tak-ming [1990]2 HKLR 370 at 387E where Silke, V-P giving the judgment of the Court said this:

"in appropriate cases which fall into that category (over 600 grammes), we consider that there can be an upward increase in the 'cut off sentence' there suggested bearing in mind that the maximum sentence provided for by the legislation is life."

4. Counsel argues that by the use of the words "appropriate cases" Silke V-P meant that a sentencing judge has a "general discretion": that he must bear in mind that there might be cases in which it would be inappropriate for the court to go beyond 20 years as the starting point even where the narcotic content is above 600 grammes. That is to misconstrue the words in the passage just quoted. It is quite clear that what the Court meant in that passage was that any case where the narcotic content is over 600 grammes is an appropriate case for the sentencing judge to fix a starting point above 20 years. The larger the amount the higher will be the starting point.

5. Counsel has also made reference to the expression "cut off sentence", as if the 20 years referred to in Lau Tak-ming at 386-D provided some sort of ceiling to the length of sentence which might be imposed. That is plainly wrong. What the Court has to bear in mind is this: in sentencing an offence the court is exercising jurisdiction conferred by s4(1)(a) of the Dangerous Drugs Ordinance where the maximum sentence for trafficking in dangerous drugs is life imprisonment. That is the "cut off" imposed by statute; there is no other that can be properly considered by the Court.

6. Counsel has also drawn our attention to the judgment of this court in The Queen v. Lau Yau-yuen [1991]2 HKLR p278 which concerned a person who played a leading role in an international conspiracy to import a huge quantity of heroin into Australia. The starting point adopted by the trial judge in that case was 25 years' imprisonment. At p284H Clough JA made the observation that that starting point was "whilst undoubtedly high, appropriate having regard to the circumstances of the particular case". Counsel asks us to consider the disparity in the criminality between the case of Lau Yau-yuen and the facts of the present case. In our judgment a comparison of that kind is inappropriate. Courts are entitled to apply experience in sentencing and it is clear that attitudes have hardened in the courts since the case of Lau Yau-yuen decided over four years ago.

7. A sentencing judge is perfectly entitled to have regard to the fact that deterrence is necessary in order to abate the incidence of serious crime. There is no doubt that the present case is serious. In our judgment there is nothing wrong in principle in adopting, as the judge did, a starting point of 25 years' imprisonment.

8. The judge gave a discount of one-third for the fact that this applicant had in effect a clear record, though it should be said that he has in fact a previous conviction in 1984 for blackmail. The discount in the circumstances of this case was generous.

9. In our judgment the judge has neither erred in principle nor is the sentence of 17 years' imprisonment manifestly excessive. The application must therefore be dismissed.