HKSAR v. CHENG WING SHUI

CACC 169/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 169 OF 2004

(ON APPEAL FROM HCCC NO. 33 OF 2003)

--------------------------------------

--------------------------------------

-------------------------------------

REASONS FOR JUDGMENT

-------------------------------------

Hon Woo VP (handing down the reasons for judgment of the Court):

1. The applicant was convicted on his own plea before Nguyen J in the Court of First Instance of a count of trafficking in dangerous drugs, namely, 846.28 grammes of a mixture that contained 261.86 grammes of heroin hydrochloride. He was sentenced to a term of 8 years' imprisonment. He sought leave to appeal against sentence. After hearing him on 22 July 2004, we dismissed his application. Our reasons appear below.

2. The facts of the case are very simple. On 5 September 2002, police officers in surveillance noticed a female coming out of a building carrying with her a red plastic bag. The woman joined the applicant who was standing at the entrance to the building. The applicant was holding a white plastic bag. The woman handed over the red plastic bag to the applicant. The two crossed the road together and approached a private car parked at a metre space. The applicant boarded the car, which drove on. The woman left. When the car was later intercepted by police officers, three other men were inside. The applicant was still holding on to the two bags. From the white bag, two Styrofoam boxes were found with a block of heroin inside each. In the red bag, another block of heroin was found. The pure heroin hydrochloride content of the three blocks of drugs came to 261.86 grammes. When asked, the applicant admitted to the police that he was taking the drugs to someone on behalf of someone.

3. At the time of conviction, the applicant was aged 74 years. He was a widower but has five children and a number of grandchildren. He was not employed and subsisted on public assistance. He had three previous convictions of gambling in a public place. He claimed to carry the drugs for the woman who had promised him a reward of $1,000.

4. The judge had fully taken into account all these circumstances when adopting a starting point of 12 years, and reduced it by one-third for giving credit for the plea of guilty to reach the sentence of 8 years' imprisonment.

5. The four grounds of appeal raised by the applicant in his notice of application are that the sentence is too heavy, that he was merely used by someone else to carry the drugs, that he was more than $10,000 in debt, and that he asks for mercy from the court considering his old age. He has raised further grounds by a letter of 17 June 2004. These grounds, save in one respect, are merely elaboration of one or the other of the four grounds. He says that he has been treated very kindly by the woman who used to give him small sums of money before asking him to carry the drugs. He is now aged 75 years and he has not committed any offence ever since 1946 when he arrived in Hong Kong from the Mainland. He is most remorseful and hopes that this Court will have mercy on him so that he may return home to spend the rest of his days with his family members. He further states that did not realise that the bags contained dangerous drugs before he was arrested by the police.

6. We do not accept that he did not realise that he was carrying dangerous drugs for someone else. That would have been contrary to his plea of guilty to the offence charged and the summary of facts that he admitted before the judge when pleading guilty, which clearly showed that upon his arrest, he told the police that he was carrying the drugs for someone else.

7. R v Lau Tak-ming [1990] 2 HKLR 370 laid down the sentencing tariffs for trafficking in heroin. For a quantity between 200 and 400 grammes, the tariff is 12 to 15 years' imprisonment. In adopting 12 years instead of 13 years (which the quantity of 261.86 grammes of heroin would normally attract) as the starting point, the judge was already very lenient to the applicant.

8. In AG v Chan Chi Mei-wah [1990] 1 HKLR 190, Cons VP stated:

"... In Lam Hak-hung v. R. Crim App No. 724 of 1972, unreported, 20th March 1973, we find:

'The argument on behalf of the appellant is, in effect, a plea in misericordiam on the ground of humanity. It is said that if the sentence of ten years' imprisonment which was imposed on the first count and the fifth count (being concurrent with the seven years' imprisonment on each of the other counts) is served in full then there is every probability that the appellant will die in prison. Be that as it may, in our view this is not a matter with which this Court is concerned. It has been said time and time again that the courts cannot regard it as a matter of mitigation that a person is either very young or very old when he has embarked upon the manufacture of dangerous drugs or involved himself in trafficking in dangerous drugs. Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old - people who may have some ground for pleading for the mercy of the court if they are in fact arrested.'"

9. This was echoed in R v Chen Chun-yen, Crim App No. 513/1996 (12 February 1997), where the Court of Appeal said:

"... drug syndicates must receive no encouragement or assistance in recruiting aged people to work for them."

10. These are clear indications from the courts to those involved in the drugs trade that old age is not a matter that the court will take into account as a mitigating factor in sentencing.

11. When sentencing the applicant, the judge said:

"In any case, to my mind, you had no need to get yourself in drugs trafficking because of the fact that you were on public assistance. You also have five children and I am sure if you had asked them for small contributions per month, they would have been more than happy to give you the money."

12. While we sympathise with the applicant's family members who must be suffering from his conviction and his long absence from the family for serving the sentence, the grounds raised by the applicant are without substance. We do not see in the circumstances of this case that a man in advanced age should expect mercy from this court when he had knowingly engaged in this heinous crime. The application must be dismissed.