HKSAR v. LAM CHUN-MING

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JUDGMENT

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Stuart-Moore, J. (giving the judgment of the Court):

1. The Applicant pleaded guilty on 17th January 1997 in the High Court before Deputy Judge Hartmann. The first count he admitted was the possession of a crystalline solid containing 0.09 gramme of methamphetamine hydrochloride ("ice") for which he received a sentence of nine months' imprisonment. The second count related to trafficking in a mixture containing 341.31 grammes of heroin hydrochloride, for which he received a concurrent sentence of nine years' imprisonment. The Applicant now seeks leave to appeal out of time against his sentence.

2. The facts revealed that the Applicant was found in possession of the drugs mentioned in the first charge, which he admitted was "ice" for his own consumption. The heroin was then discovered with other drugs' paraphernalia at his address. The Applicant told police that these were not his property. However, he admitted making deliveries for his boss, who he only knew by the name Sai Fei. The retail value of the heroin was $490,000. There was fingerprint evidence connecting the Applicant to the bags, and the Applicant was making a living out of delivering drugs for his boss at the rate of $500 a day.

3. The Applicant had five previous convictions, which had resulted in probation orders, detention centre, a fine and a short prison sentence, but none of those offences were concerned with drugs. Mitigation was put before the court on the basis of the Applicant's co-operation with police, to whom he had admitted the offences immediately. He followed that in court by indicating an early plea of guilty, his role was subordinate to Sai Fei and he was doing this in order to repay a loan from his boss.

4. Other matters raised in court related to the Applicant's mother, who is sadly suffering from cancer, and to the assistance which he tried to give to the police. This, however, was insufficiently specific to be of any use.

5. The judge took a starting point of 13 1/2 years for the heroin offence. We think it was rather unfortunate that the judge did not approach the matter of sentence in a way which conveyed more clearly what he was saying. Reading from the transcript, the judge said:

          "In respect of the far graver matter - the trafficking in heroin - avoiding a mathematical approach and taking into account all the factors including, frankly, some minor degree of mercy in light of the mother's illness, I think it would be proper to give a material discount, reducing the sentence of 13 1/2 years to one of 9 years. That is the sentence which I give on the second count - that is, 9 years' imprisonment."

6. Having said that he was not approaching the sentence on a mathematical basis, he then gave a discount of precisely one-third of the sentence from which he had started. We can see that the judge had, seemingly, been saying that he would take into account matters over and above the usual discount, by including in the Applicant's favour matters which are not normally regarded as mitigation carrying any weight in offences of this magnitude or of this type. However, the sentence based on the amount of drugs in this case might, under the Lau Tak-ming guidelines, well have been expected to have been 14 years or above, so that the Applicant can have no real complaint with a sentence of nine years' imprisonment after plea. In the circumstances, the judge gave all credit that was proper in view of the mitigation put before the court.

7. We have carefully looked at the Applicant's grounds of appeal. He appears to think that the trial judge began by saying that 13 1/2 years was the appropriate starting point, but then reduced it to 13 years, with the effect that a one-third discount should have resulted in a sentence of eight years and eight months. We wish to assure the Applicant that in that respect he is mistaken in his belief. At no stage did the trial judge say that he was taking 13 years as the starting point.

8. In view of the fact that there was clearly some misunderstanding about what the judge had said, we have been prepared to hear this application out of time. However, there is no merit in the application for leave to appeal itself, and the application must be dismissed.