HKSAR v. WONG WAN

CACC 384/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 384 OF 2000

(ON APPEAL FROM DCCC 159/2000)

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J U D G M E N T

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Hon Mayo VP:

1. The applicant seeks leave to appeal against the sentence of 4 years and 2 months imprisonment imposed upon him in respect of two counts of trafficking in dangerous drugs.

2. The applicant who is aged 78 was stopped in the street and 5.11 grammes of heroin was found on him. A search was made of the room he occupies and a further 10.86 grammes of heroin was found. The packing found made it clear he was a trafficker. He pleaded guilty to both offences before H.H. Judge Toh in the District Court.

3. The Judge passed a sentence of 20 months imprisonment on the first count and 40 months on the second and ordered that 10 months to be served concurrently. This was not the correct approach to this sentencing exercise.

4. What the Judge should have done was to add the total of the dangerous drugs the subject of the two charges and base the sentence on this.

5. The correct starting point of 16 grammes of heroin under R v Lau Tak-ming [1990] 2 HKLR 370 is approximately 6 years imprisonment. The applicant would have been entitled to receive the full 1/3 discount thus reducing his sentence to 4 years imprisonment.

6. Although the difference between the correct approach and the sentences imposed is only 2 months nonetheless as the sentence was wrong in principle leave is granted to proceed with the appeal.