THE QUEEN v. LEUNG TAK-WAH

IN THE COURT OF APPEAL

1995, No. 569
(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court) :

1. On 4 August 1995 the applicant pleaded guilty before Deputy Judge Wesley Wong for two offences of trafficking in dangerous drugs. The first offence involved trafficking in a mixture containing 216 grammes of heroin and the second offence a mixture containing 46 grammes of heroin, the total being in the order of 262 grammes.

The facts

2. On 28 September 1994 officers from the Customs & Excise Department saw the applicant with another person emerge from No. 76 on the second floor, Beech Street in Kowloon. The applicant was carrying a plastic bag which contained the drugs in the first charge. After his arrest, he was taken back to his flat at No. 76. There the drugs in the second count were found.

The sentence

3. At trial he pleaded guilty to those two offences. He was 30 years of age with a poor record. The judge sentenced him separately on each count. Following the guidelines in Lau Tak-ming, he sentenced him to 8 years imprisonment for the first count, having reduced the sentence from 12 years for his plea. On the second count, he reduced a sentence of 6 six years to 4 years. However he then took into account totality and adjusted the sentences to make 10 years in all by making part of the sentences consecutive.

The application

4. Mr Loughran, on behalf of the applicant, submits that the judge's approach was wrong in that on the particular facts of this case, the criminality was that at the time of arrest he was trafficking in, or in possession for trafficking, of a total of 262 grammes and that in those circumstances the judge ought to have followed the guideline in Lau Tak-ming by starting with that total.

Conclusion

5. With this approach, Mr McWalters for the Crown, agrees. In those circumstances we give effect to the submissions, allow the application, treat this application as the appeal and substitute for the total sentence of 10 years one of 8½ years imprisonment. We do that simply by accepting the sentences which the judge passed and taking the judge's sentences of 8 years for the first count and 4 years for the second, but so far as the 4 years is concerned, we make six months of that sentence consecutive to the 8 years, making 8½ years in all.

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