HKSAR v. WONG KA HING

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No.352
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. In this matter the applicant seeks leave to appeal out of time against his sentence of four years imposed by Judge H.C. Wong for an offence of trafficking in dangerous drugs. As we were satisfied that there was merit in this application, we gave leave to appeal out of time.

2. The count which he faced alleged that on or about 15th March 1997, outside the lift lobby of the ground floor of Block 40, Sau Mau Ping Estate, he unlawfully trafficked in dangerous drugs, namely 38.22 grammes of a mixture containing 14.07 grammes of heroin hydrochloride and 20 tablets containing 0.39 gramme of midazolam maleate. He was stopped and searched and the drugs were found in his right trouser pocket. He said that they were for his own consumption and asked for a chance. However, at the police station he admitted that he was acting as a lookout for "Ah B" who told him to carry drugs which would then be sold.

3. The judge when sentencing acknowledged that the tariff was laid down in Lau Tak-ming and went on to say:

"The usual tariff for the quantity of drugs that you were found with is 5 to 8 years. I have considered that you pleaded guilty to the offence, the quantity of the drugs, your background and also that your father seems to care a great deal for you. Whether you are willing to change and get rid of your drug habit is entirely up to you. Whether you want to turn over a new leaf in future and not be a disappointment to yourself and your father, it is something within your power to do, the question is whether you are willing to take that choice.

In view of the factors I mentioned, I am prepared to give you some discount in your sentence. You are sentenced to 4 years' imprisonment. I hope you will take the opportunity and reform and get rid of your drug addiction habit and that you will learn to practise in a useful trade and not continue your association with undesirable elements when you finished your term of imprisonment."

4. The applicant in what he terms his "Grounds for reduction in sentence" says:

"In this case, the police insisted on charging me with trafficking in dangerous drugs but not possession of dangerous drugs. However, there is no witness and no cash transaction in this case. I bought these drugs for my own consumption. As I did not want to waste court's time and money, I pleaded guilty at the earliest stage in the hope of leniency."

He goes on to suggest that in another case, a similar offender was sentenced to 2 years' imprisonment and suggests that his punishment was too heavy.

5. The first matter raised in those grounds is a suggestion that he was not guilty of the offence. We do not entertain this suggestion that as he was convicted on his own plea. We are, further, not assisted by the suggestion that another offender was dealt with more leniently as we know nothing of the facts of that case.

6. That matter that does concern us is whether the judge gave the proper discount. She stated that the tariff was 5 to 8 years. We are not assisted at all by that indication as we are well aware of the tariff in Lau Tak-ming. What would have assisted would have been an indication of the starting point. We have said before and we say again that a court, when sentencing, must in almost all cases set out the starting point. The proper starting point in this matter is 5 1/2 years. From that starting point any discount for plea or any other mitigating factors should have been given.

7. Before we go on to examine the matter of discount, we point to one other unsatisfactory feature of the judge's sentencing exercise. A Drug Addiction Treatment Centre report was sent for. In it there was a recommendation that the Applicant, although he had previously been to a Treatment Centre, was considered suitable for a further period of treatment. While we agree that this was not an appropriate case in which to send him to a Treatment Centre, we are nonetheless disturbed that the judge, having sent for the report and having had a report favourable to the applicant, did not see fit to make any mention of it in her Reasons for Sentence. We would have been assisted had we been told by her why she was not prepared to accede to the recommendation in the report. However, as we have said, we are satisfied that the offence was, as the judge probably felt, too serious to allow that recommendation to be implemented.

8. We return then to the appropriate discount. We are satisfied that the applicant should have been given a one-third discount which would have meant that he had a reduction of 22 months from the starting point of 66 months. This would bring the sentence to 44 months, i.e. 4 months less than the sentence imposed. He is entitled to have the benefit of that reduction.

9. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentence is varied from one of 4 years to one of 3 years and 8 months.