HKSAR v. LAM WING SUM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 565
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty before Deputy Judge Suffiad in the Court of First Instance of the High Court to two counts of trafficking in a dangerous drug. The first count involves a quantity of 0.87 kilogramme of cannabis. For this offence he was sentenced to 6 months' imprisonment. The second count involves a number of different dangerous drugs, namely, 13.83928 kilogrammes of cannabis, 1.37 grammes of diazepam in tablets and tablet fragments, 0.04 grammes of methamphetamine hydrochloride (Ice) in tablets and tablet fragments and 397.10 grammes of mixture containing 320.71 grammes of heroin. For this count, the deputy judge sentenced him to 9 years' imprisonment. The sentences are concurrent. The Applicant now applies for leave to appeal against sentence.

2. The admitted facts are simple. On 24.1.1997 in the afternoon, the Applicant was observed by police officers exiting from No. 9, Hing Wah Street, Cheung Sha Wan. He was carrying a plastic bag. When he was intercepted and searched, the bag was found to contain the amount of cannabis in the first count. The Applicant then took the officers to the 3rd floor of No. 9, Hing Wah Street, where the officers found the various quantities of dangerous drugs in the 2nd count. In addition, knives, scissors, a spoon and an electronic scale were found on the premises. The Applicant appeared to have an assortment of dangerous drugs ranging from the very soft one to the real hard ones available in stock.

3. Before the deputy judge, counsel submitted on the Applicant's behalf that the Applicant owed money to loan sharks and when he could not repay the debt, he agreed to trafficking in dangerous drugs for them in order to avoid trouble being caused to his family. He was remorseful and he pleaded guilty.

4. The deputy judge applied the guidelines in Chan Chi-ming when he assessed the sentence in relation to the count involving 0.87 kilogrammes of cannabis. In relation to the various quantities of different dangerous drugs in the 2nd count, the deputy judge took a global view and after considering the sentencing guidelines on heroin in Lau Tak-ming, he adopted a starting point of 15 years. After giving allowance to his plea and taking into consideration his plight the deputy judge reduced the sentence to one of nine years' imprisonment.

5. The Applicant appealed on the ground that the deputy judge had not taken into consideration the mitigating circumstances and the starting point adopted was too high.

6. For trafficking cannabis, according to the guidelines, where the amount is between 500 and 1000 grammes, the sentence is 4 to 8 months. Thus the sentence of 6 months after plea for 870 grammes of cannabis cannot be regarded as inappropriate.

7. The amount of cannabis in the 2nd count is enormous, almost 14 kilogrammes. The sentencing guidelines dictate that for over 9000 grammes it would be a minimum of 4 years. For almost 14 kilogrammes, it would attract easily a sentence of over 5 years' imprisonment. For trafficking 320.71 grammes of heroin hydrochloride alone, the sentence will be on the high end of the range of 12 - 15 years' imprisonment and a starting point of 14 years would not be inappropriate. For trafficking "Ice" up to 12 grammes the sentence will be 3 to7 years. For the quantity of "Ice" in the 2nd count alone, the deputy judge could have sentenced the Applicant to at least 3 years' imprisonment.

8. Thus, taking into account the quantity of diazepam and taking a global view of the total amounts and the varied nature of the dangerous drugs in the 2nd count, 15 years as a starting point could not be less than generous. The deputy judge could have adopted a higher starting point in the circumstances of the present case.

9. The deputy judge in sentencing the Applicant to 9 years' imprisonment for the 2nd count had given the Applicant a 6 years' discount, a discount of more than the usual one third for a plea. No doubt, this was for the mitigating factors pleaded on his behalf by counsel. The Applicant may consider himself fortunate that he was only sentenced to a total of 9 years' imprisonment. There is no merit in this application. We refuse the application for leave to appeal against sentence.