R. v. LAU TAK MAN

IN THE COURT OF APPEAL

1996, No.515

(Criminal)

_______________

_______________

_______________

J U D G M E N T

_______________

Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter faced two counts of trafficking in dangerous drugs. The first alleged that on 15th January, outside the ground of No.10 Chun Fat Street, Tokwawan, he unlawfully trafficked in 27.02 Krammes of a mixture containing 22.94 Krammes of heroin hydrochloride. In the second it was alleged that on the same day inside the rear room of the first floor of No.9, Hok Ling Street, Tokwawan, he unlawfully trafficked in 1,362.07 Krammes of a mixture containing 99.84 Krammes of heroin hydrochloride.

2. The facts are all too familiar. He was seen with a woman acting suspiciously outside the staircase of No.10 Chun Fat Street. He was stopped and searched and the drugs, the subject of the first charge, were found in his right jeans pocket. He was then escorted to the flat, the keys of which he was carrying, and the drugs, the subject of the second charge, were found therein. When he was arrested and cautioned he said, "Ah Sir, I understand. I had to make money. I have no choice." He pleaded guilty to those two charges and was sentenced to imprisonment for four years and four months on the first charge, six years on the second charge and the sentence in respect of the second charge was ordered to start running after one year had been served on the first charge making a total of seven years.

3. The trial judge when sentencing said:

"Your counsel has said everything that can be said on your behalf. The evil of dangerous drugs is notorious, not only the end user suffers, their immediate family and the society as a whole suffers indirectly. So people dealing in drugs do not deserve and cannot expect leniency from courts."

We fully concur with these observations. The judge went on:

"A long custodial sentence is inevitable for dangerous drugs offenders, hence the Court of Appeal have laid down guidelines in Lau Tak-ming's case. There are no mitigating factors which enable me to depart from the guideline except your confession of guilt at the earliest opportunity. Your plea of guilty, which saved time - public time and money and have demonstrated your remorse, deserves some discount."

We, again, endorse those remarks. The judge went on:

"In respect of the 22.94 Krammes, subject matter of the 1st charge, I take a starting point of six and a half years, give you a one-third discount and sentence you to four years and four months.

In respect of the 99.84 Krammes, subject matter of the 2nd charge, I take a starting point of nine years, give you a one-third discount and sentence you to six years.

I order that the sentence in respect of the 2nd count to start running after you've served one year in respect of the 1st count, making a total of seven years."

4. The applicant in his appeal has urged that he pleaded guilty, that he co-operated with the police, that he had no record of similar offences, that he has suffered because of the shame occasioned by his conviction and because he is not able to see his young daughter. He complains also that he was sentenced too severely as the two offences which were in fact part of one sequence of events were dealt with separately.

5. The only material matter is the last one above. What we must, however, determine is whether the sentence of seven years was, given the overall quantity of dangerous drugs, a proper one. The overall quantity was just over 120 Krammes. This would throw up a starting point of ten years and a proper discount would be three years giving a sentence of seven years. This was the sentence which the judge imposed. We remark only that it might have been better had the judge made his assessment as indicated above rather than in the more involved way which he used. What was involved could properly be regarded as one transaction involving slightly over 120 Krammes.

6. Nothing has been said that would allow this court to interfere with the sentence imposed. The application is refused.