HKSAR v. LAM CHI CHEUNG

CACC531/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 531 OF 1998

(ON APPEAL FROM DCCC 754 OF 1998)

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J U D G M E N T

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Power, Ag. Chief Judge, H.C. (giving the judgment of the Court):

1. The applicant in this matter pleaded not guilty to a charge of trafficking in a dangerous drug, it being alleged that he, on 9th April 1998, at the staircase of the first floor, Nos.21-23 Chun Wing Street, Mongkok, unlawfully trafficked in a dangerous drug, namely 34.22 grammes of a mixture containing 21.18 grammes of heroin hydrochloride. He was found guilty of that charge after trial and he now seeks leave to appeal against both conviction and sentence.

2. The facts which we take from the Reasons for Verdict of Judge Toh revealed that at about 1.50 in the afternoon of 9th April 1998, he was seen to pick up a newspaper-wrapped packet from behind an electric mains switch on the first floor of the premises mentioned in the charge. He was seen to put that packet into his trouser pocket. The police then approached, apprehended and searched him and the packet was recovered. In that packet were found six plastic bags containing 60 small packets of dangerous drugs and one plastic bag with 10 small packets. They were the drugs subject of the charge.

3. The applicant, having been arrested, under caution admitted his possession but said that the drugs were for his own consumption in order to stop the pain of his sciatica. He said that he bought a large quantity because it was cheaper and he would run less risk of being caught. He claimed to have paid $5,000 for the drugs he had purchased.

4. Inspector Ke, a police expert witness, was called. He said that in his view the total value of the drugs would come to about $13,800. However he readily agreed that there would be a difference between his calculation and an actual wholesale price.

5. The judge made the following findings:

"The defendant elected not to give evidence nor call any evidence after I ruled that he had a case to answer. After hearing Mr. Cheng's submissions and considering all the facts in this case, I have come to the following conclusions:

Firstly, the defendant was indeed in possession of this quantity of drugs. Inspector Ke is an expert on the street value of drugs in Hong Kong and I accept his calculations on the purity and value of these drugs. I also accept that his opinion that these drugs are worth about $13,800 did not take into account the fact that it bought wholesale, it may be cheaper. But even if it is cheaper bought wholesale, I do not accept that that it can be as low as $5,000. These drugs were separately packaged into 70 separate packets.

Taking into account all the evidence, I am left with the only inference, which is an irresistible inference, that the defendant had these drugs for trafficking and therefore the defendant is convicted as charged."

6. The applicant seeks to challenge that conviction saying in his written grounds that he is not guilty. In his address to us he has repeated that and has again said that he bought the drugs for his own consumption because he suffered from sciatica. It is to be noted that he did not give this evidence in court nor subject himself to cross-examination thereon. The approach of the trial judge to this matter was an entirely proper one and her reasoning cannot be faulted. The conviction is in no way unsafe and the application for leave to appeal against it is dismissed.

7. We turn to sentence.

8. The judge when sentencing said

"Sentencing tariffs were imposed by the Court in the case of Regina v. Lau Tak-ming, 1990 Vol.2 HKLR 372. The Court of Appeal said in that case that after trial where the defendant is convicted of trafficking between 10 grammes to 50 grammes of dangerous drugs, it would warrant 5 to 8 years' imprisonment."

9. The quantity involved would have called for a sentence of about seven years. However, the judge did not follow the guidelines but was lenient to a degree which we are not sure was warranted. She said:

"And also there is the fact that the defendant has only two previous of possession of dangerous drugs. This will be his first time in jail so I will reduce it by 1 year to one of 5 years' imprisonment."

10. The applicant seeks leave to appeal against that sentence placing before us family circumstances saying that his father is out of work and, indeed, is unable to work and that his mother, who was the sole support of the family, may shortly lose her job. Sad as the circumstances may be, they cannot be allowed to weigh when sentencing for an offence of this nature. The sentence was, as we have said, lenient. The application for leave to appeal against it has no merit whatsoever and is dismissed.

11. There being no merit in the appeal we direct that there be three months' loss of the time between the entry of the Notice of Appeal and today.