HKSAR v. LI MING YIU, STEVEN

CACC 428/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 428 OF 1999

(ON APPEAL FROM DCCC NO. 517 OF 1999 )

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J U D G M E N T

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Wong JA:

1. The Applicant pleaded guilty before Deputy Judge N Wong in the District Court to a charge of trafficking in 15.15 grammes of heroin hydrochloride. He was sentenced to a term of imprisonment of 3 years and 8 months. He seeks leave to appeal against this sentence.

2. The offence took place on 19 March 1997. The date of his plea and sentence was 12 August 1999, more than two years after the commission of the offence. The reason for this was that the Applicant did not answer his bail and absconded. He was re-arrested in Hong Kong in June 1999.

3. The facts were very simple. Four paper packets containing 74 smaller packets of dangerous drug was found on the Applicant after he was intercepted by two police officers in a street in Wanchai.

4. The thrust of the appeal is that the Judge failed to give sufficient consideration to the special circumstances and also the good conduct of the Applicant between April 1997 and June 1999. The special circumstances were said to be these. In April 1997, the Applicant had his right forearm amputated as a result of multiple injections of dangerous drugs. Since April of the same year, he joined a charity organisation called the Operation Dawn, overcame his drug addiction and became a Christian. In 1998, he donated some of the money he received from compensation in a traffic accident to the Operation Dawn.

5. The judge took a starting point of 51/2 years which has not been challenged either before the judge or in this court. We are satisfied that this is a correct starting point. The judge gave him a full one third discount despite what the judge called a belated plea. The judge only activated two months of a suspended sentence of 4 months imposed on the Applicant in February 1997 for theft and ordered it to run concurrently with the present sentence. The judge heard a full and complete account of the Applicant's personal background put before him in mitigation and he considered this very carefully. The judge was fully aware and made reference to the amputation of the forearm and that the Applicant was "struck by the light of God" and had since converted to Christianity. All these the judge took into account. He was the author of his own misfortune for the loss of his forearm. Although the Applicant rehabilitated himself during the two years after he had absconded from bail, we consider this is not a mitigating factor of any significance. He did not surrender himself to the police and never had the intention to do so. He was re-arrested when his whereabouts were discovered. As Mr Blanchflower very aptly put it in his written submission :

"During the 2 years when the Applicant was at large he rehabilitated himself, but although he found God, he was unable to find his way to a police station to turn himself in."

6. We can see no ground to interfere with the sentence imposed by the judge which is neither manifestly excessive nor wrong in principle.

7. The application is dismissed.