R. v. WU KA BOON

IN THE COURT OF APPEAL

1995, No.223
(Criminal)

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J U D G M E N T

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

1. The applicant pleaded guilty to one count of trafficking before Deputy Judge Wesley Wong and was sentenced to imprisonment for 20 years. He now seeks leave to appeal against that sentence.

2. The facts are relatively straight forward. The applicant was seen by police officers conducting surveillance, stopped and searched and then taken to a flat on 25th floor of Block 2 of Elegance Gardens. Inside one of the bedrooms, two blocks of dangerous drugs were found on top of a wooden cabinet, three blocks inside one of its drawers and a bag of dangerous drugs on the floor. An analysis showed that there was in all a mixture of 2,131 grammes containing 1,971 grammes of salts of esters of morphine. There was also paraphernalia such as blends and cutters and scales in the flat and the applicant's fingerprints were found on various items such as buckets, and plates and blenders. Under caution the applicant admitted that the dangerous drugs found in the flat were taken there by him for refinement for sale.

3. The trial judge said when sentencing:

"I do not agree that being a courier I should impose a lighter sentence because it is people like you who shield the masterminds and without couriers the trade in drugs cannot flourish. I take the culpability of both the courier and the mastermind as the same.

I take into consideration your plea of guilty and your immediate admission of the offence.

In view of the huge amount involved, which is almost 2 kilograms, I take a starting point of 30 years and give you a maximum reduction of one-third and sentence you to 20 years imprisonment."

4. We do not consider that the observations as to the culpability of mastermind and couriers are altogether appropriate. We do not need to speculate as to the sentence a mastermind might have received. Suffice to say that this court has said in the past and now repeats that a person such as the applicant must be sentenced upon the basis that he was deeply involved in trafficking in dangerous drugs. The appropriate sentences for such a person are indicated in Lau Tak Ming. If a person were proven to be mastermind the sentencing court might well feel that sentences more severe than those indicated therein would be appropriate.

5. The applicant, who is represented today by Mr. Cotsen, relies upon the fact that he pleaded and also upon the fact, which was not before the judge, that he not only gave a statement to the police implicating a man called Yu but that he was also prepared to give evidence at the trial of Yu. In the outcome he did not as Yu pleaded guilty. It is acknowledged by the prosecution that he co-operated to this significant extent.

6. The first matter to which we must turn our minds is whether or not the starting point of 30 years adopted by the trial judge was a proper one. We consider that that starting point was in the circumstances too high. We are satisfied that a starting point of 27 years would have been appropriate. We accept the trial judge's approach to discount and would give a one-third discount to bring the sentence to one of 18 years. We are satisfied further that the applicant must be given credit not only for the giving of information but also for his preparedness to give evidence against Yu. We give a further discount in that regard of two years bringing the overall sentence to one of 16 years.

7. The hearing of the application is treated as the hearing of the appeal and the sentence is varied from 20 years to one of 16 years.