HKSAR v. LAM YUK KI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 470
(Criminal)

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J U D G M E N T

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Nazareth Atg CJHC (giving the judgment of the Court):

1. The applicant pleaded guilty before Her Honour Judge Kwan in the District Court to a charge of trafficking in dangerous drugs and was convicted and sentenced to imprisonment for a term of 3 years and 9 months. He now seeks leave to appeal against that sentence.

2. The particulars of the charge are that on or about 20 December 1997, at Shell Mongkok Filling Station, Prince Edward Road West, Mongkok, Kowloon, he unlawfully trafficked in a dangerous drug, namely 13.89 grammes of a mixture containing 11.95 grammes of heroin hydrochloride.

3. The facts were that shortly after midnight on 20 December 1997, the police saw the applicant and a female alight from a car and enter the Jockey Club staff quarters in Shatin. They searched him and found a packet of what turned out to be the dangerous drug charged. The applicant explained later, and has told us today, that he had driven this female person as a relief taxi-driver. He admits to being an addict and says that he and the female pooled the money they had and obtained the drug. He says that despite the quantity, he had not intended to traffick in the drug, and that the money he contributed was only $300. He says, by driving the female home he did not think he would commit an offence. That is nothing to this point as clearly on his own admission, he admitted possession of the drug.

4. Also, he says that he has not committed any other serious offence for the long period of 10 years. He also says he assisted the police. Both those matters were taken into account by the judge who was aware of the details of his previous record and who also expressly referred to his having assisted the police. As Miss Denise Chan, for the respondent, says the judge did take those matters into account.

5. The applicant also complains that he received a favourable Drug Addiction Treatment Centre Report. What happened below was that the judge adjourned the matter to procure the report, but having received it, did not respond to the conclusion therein recorded in the following way:

"I consider him suitable for admission to the Drug Addiction Treatment Centre."

However, when one looks at the report itself, the immediate preceding sentences are to the following effect:

"... the defendant is a drug dependant. Also, in view of his poor self-control, weak determination and taking into consideration of his future rehabilitation as well as his family's incapable of supervising him in the future, a period of compulsory drug addiction treatment coupled with intensive counselling and aftercare supervision would be beneficial to him for his reformation and integration into society in the future."

In addition to that somewhat lukewarm recommendation, it can be seen that the applicant is 45 years old. Looking at all the material before the judge and this Court, the judge's exercise of discretion in deciding not to make a DATC order cannot be faulted.

6. The applicant also says that he is filled with remorse for the present offences, and that if he is allowed to reintegrate into society, he will make a fresh start.

7. None of these matters the applicant has referred to, nor the sad circumstances that he has also mentioned, namely the poliomyelitis that struck his younger brother and crippled him, and the fact that they were orphans without any family care, in any way warrant interference with the sentence. In assessing it, the judge correctly had regard to the tariff in R v Lau Tak-ming [1990]2 HKLR 370. The quantity of drugs here, as she pointed out, is at the lower end of the second category which attracts a sentence of 5-8 years. She accordingly took a starting point of 5 years, to which there can be no objection and which seems entirely correct. She then allowed a discount of 15 months for his somewhat late plea of guilty, in which respect she likewise cannot be faulted.

8. In those circumstances there is no merit in the application. We dismiss it.