THE QUEEN v. CHEUNG WAI WING

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JUDGMENT

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Penlington, J.A. (delivering the judgment of the Court) :

1. This is an application for leave to appeal against sentences passed by Ryan, J. following pleas of guilty to three counts of possession of dangerous drugs for the purpose of unlawful trafficking and one of simple possession. The applicant was acquitted on a fifth charge of manufacturing dangerous drugs on which the Crown offered no evidence.

2. On 8th June 1990 officers of the Narcotics Bureau observed the defendant getting out of his motor-car near the ground floor of a block of flat in Tsuen Wan. When they approached him he ran off but he was pursued, apprehended and on him were found the keys of the car. It was searched and three bags containing over 1,000 grammes of a mixture containing 517 grammes of pure heroin were found in it. The police party then took him back to his home where a very small quantity of heroin was found, which formed the basis for the simple possession count. He then gave the police two other addresses in one of which was found 1,400 grammes of a mixture containing 106 grammes of pure narcotic. In the other premises there was 5 grammes of heroin. This gave a total quantity of 629 grammes in the three counts of possession for trafficking.

3. It is not in dispute that the applicant, although he did try initially to get away from the car, made a statement to the police immediately after his arrest in which he admitted these offences, and he cooperated with the police by taking them to the other two addresses, which they possibly might not have been able to find without his assistance. Also he gave the police the name of a man called Cheung Chi Kit, who was subsequently arrested, and of two other men, although apparently they were not located. Cheung Chi Kit however was not charged with any offence.

4. The tariff f of sentence for possession of more than 600 grammes of pure heroin is as laid down in R. v. Lau Tak Ming and Yeung Wai Shing and Others [1990] 2 HKLR 370. This is a "very large quantity" and the sentence should be in excess of 20 years. The trial judge did not state what he took as the starting point but taking into account the facts which were proved, he imposed sentences of 16 years for the first charge, and 6 months, 7 years and 2 years in respect of the other charges, all to be concurrent. There can be no argument that that was a proper course to follow.

5. The trial judge said that he considered an overall sentence of 16 years was appropriate and, on the basis that he took as a starting point 20 years, that would be a discount of 20%. As we have said in other appeals we do not propose to enter into a mathematical debate as to the exact amount which should have been given. Here cooperation was given although it did not, as we have said, prove to be fruitful in that the man Cheung was not charged and the applicant did not give evidence against him. However he did cooperate and the two premises which were searched may not have been found without his help. We take into account the fact that he pleaded guilty and, although it does not seem to be clear exactly when he did so, it would appear it was at an early stage. There does seem to be some indication of genuine regret.

6. While reluctant to interfere with a sentence of this sort we feel that the trial judge did not give the full benefit to the applicant for the matters which were raised in mitigation. we grant the application, treat this as the hearing of the appeal and reduce the sentence on the first charge to 15 years' imprisonment. The other sentences will remain.