HKSAR v. LAU SUK HAN AND ANOTHER

CACC372/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 372 OF 1998

(ON APPEAL FROM HCCC 218 OF 1997)

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J U D G M E N T

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Stuart-Moore, V.-P.

1. The full circumstances of this case are set out in the judgment of the court which we delivered this morning when dismissing applications for leave to appeal against conviction.

2. Turning to the applications relating to sentence, the judge reduced the starting point he had taken of twenty-two years' imprisonment by one year in order to take into account D1 and D2's previous good character, albeit D1 had two minor convictions in her past which the judge rightly chose to ignore. He also took into account the fact that the Applicants were not ring-leaders in this international drug smuggling operation.

3. Today, while maintaining their innocence, they have said a number of times that the drugs were not theirs. We, of course, recognize that the drugs were not theirs in the sense of ownership. The Applicants were couriers for far more seriously involved people.

4. As the trial judge pointed out, the guidelines for sentencing in a case such as this indicate that a twenty-year starting point is appropriate for offences involving more than 600 grammes of heroin. Each of the Applicants was trafficking in more than six times that amount.

5. In The Queen v. Ho Chi-ming, Criminal Appeal 447/94, Litton, V.-P. (as he then was), in a case which involved a mixture containing 1.213 kg. of salts of esters of morphine (heroin), confirmed the 25-year starting point taken by the trial judge. In giving the judgment of this court he said:

"A sentencing judge is perfectly entitled to have regard to the fact that deterrence is necessary in order to abate the incidents of serious crime."

6. In a further case: HKSAR v. Ng Sai-ho, Criminal Appeal 528/97, where the narcotic content was 1.149 kg. of heroin hydrochloride, this court, on 2nd April 1998, confirmed a sentence of twenty-four years' imprisonment.

7. The Applicants can regard their sentences, for no good reason that is apparent to this court, as having been merciful in the circumstances. They could well have received considerably heavier sentences and no valid complaint could have been made if they had.

8. We have in mind that a proper sentence would have been not less than 24 years' imprisonment for criminal conduct of this gravity.

9. Accordingly, there is no merit in these applications and they are dismissed.