R. v. LEUNG SAI WAH

IN THE COURT OF APPEAL

1995, No. 572
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. This is the judgment of the court.

2. The applicant was convicted after trial to one count of trafficking in a dangerous drug and sentenced to 10 years' imprisonment. The quantity of drugs involved was a mixture of 338.76 grammes with the narcotic content at 57.53 grammes of heroin.

3. The applicant was convicted and sentenced on 8 August 1995. He did not lodge his notice to appeal until 28 November 1995. He was, therefore, out of time. For reasons which will become clear, we allow him an extension of time to enable him to pursue his application for leave to appeal against sentence.

4. The applicant was found in possession of the dangerous drug involved outside June Garden at Tung Chau Street. According to the guideline laid down in the well-known case of Lau Tak Ming [1990] 2 HKLR 370, for a quantity of 50 to 200 grammes, the range of sentence should be 8 to 12 years. The quantity of drugs involved therefore comes at the bottom end of the range.

5. The learned trial judge obviously had in mind the case of Lau Tak Ming but he referred to "a long history of criminal convictions and the last conviction of a similar offence was in 1981." Further, he took the view that the applicant had not learned from his previous mistakes even after having served a four-year prison term for robbery which was in 1989.

6. We do not think the judge should have taken into consideration criminal convictions which were not similar nor would it be right for him to take as an aggravating factor a similar conviction which took place fourteen years ago. For these reasons, we think it right to follow the guidelines in Lau Tak Ming and reduced the sentence of ten years to one of eight years.

7. We allow the application, treat the hearing of the application as the hearing of the appeal, allow the appeal. We reduce the sentence of ten years to eight years.