R. v. NG MAN-KEUNG

IN THE COURT OF APPEAL

1993, No. 194
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The applicant pleaded guilty before Leong J. two counts of trafficking in a dangerous drug. The first count related to 69.88 grammes of a mixture containing 33.18 grammes of salts of esters of morphine. The second count concerned 186.22 grammes of a mixture containing 87.39 grammes of salts of esters of morphine.

2. The facts were that police officers, who were engaged in a surveillance operation in Fa Yuen Street, Mongkok on 6 September 1992, intercepted the applicant as he was leaving his flat and searched him. He was found to be carrying a plastic bag containing a magazine inside of which were secreted four polythene bags containing the quantity of drugs referred to in the first count. When asked what the bags contained, the applicant replied that it was white powder and that he sold to others to make a living. He was then taken to his flat where a search revealed 16 plastic bags inside a tool box. These contained the quantity of drugs referred to in the second count. The police also discovered packing paraphernalia inside the box. When asked what the bags had contained, the applicant replied that it was white powder and that they belonged to him.

3. In passing sentence the judge stated that the starting point for sentence on the first count was one of eight years' imprisonment and that on the second count was one of twelve years. However, taking into account the applicant's immediate confessions to the police and his pleas of guilty, the judge gave him a discount of three years on the first count and four years on the second count and ordered that the sentences of five years and eight years' imprisonment be served concurrently. The applicant now seeks leave to appeal against the sentences.

4. Mr. Dennis Law, who appeared on behalf of the applicant in this court, submitted that the sentences were manifestly excessive in that the starting point adopted by the judge did not accord with the tariff guidelines laid down in R. v. Lau Tak Ming [1990]2 HKLR 370. Those guidelines state that where the narcotic content of the seizure is between 10 and 50 grammes the sentencing range is from five to eight years' imprisonment, and that where the content is between 50 and 200 grammes the sentencing range is between eight and twelve years.

5. Mr. Law's submission was that, since there were no aggravating features that justified such a course, the judge erred in selecting as his starting point for sentence the maximum sentence in each sentencing band, when the narcotic content of the seizures fell in the middle of those bands. It was Mr. Law's contention that the judge was right to order that the sentences be served concurrently but that in the light of the total narcotic content of the seizures, namely 120.57 grammes, an overall starting point of 10 years was appropriate, and that this should have been reduced to seven years because of the mitigating factors which the judge properly accepted.

6. While we emphasize that the sentencing bands referred to in Lau Tak Ming are no more than guidelines and that judges are entitled to exercise their sentencing discretion in the light of all the relevant circumstances of each case, we can find no justification for the high starting point which the judge adopted in the present case. Notwithstanding that the applicant had been caught red-handed and that therefore the discounts granted by the judge were generous, we have come to the conclusion that there is merit in Mr. Law's submission. We therefore grant the application and treat it as the hearing of appeal, allow the appeal, quash the sentences of five and eight years and substitute for them concurrent sentences of four and seven years respectively.