HKSAR v. CHEUNG CHEUK KIN

CACC654/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 654 OF 1997

(ON APPEAL FROM HCC 244 of 1997)

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J U D G M E N T

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Woo J. (delivering the Judgment of the Court) :

1. This is an application for leave to appeal against sentence. The Applicant was convicted on his own plea of two counts of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2. The first count was that on 2nd April 1997, on the Ground Floor, Godfrey Centre, Nos.175 - 185, Lai Chi Kok Road, Mongkok, Kowloon, he unlawfully trafficked in a dangerous drug, namely, 60.47 grammes of cannabis. The second count was that on the same day at Flat A, 4/F of the same building, he unlawfully trafficked in dangerous drugs, namely, 2,432.85 grammes of cannabis and 1,926.63 grammes of a crystalline solid containing 1,876.64 grammes of methamphetamine hydrochloride, commonly known as "ice". The trial judge adopted a starting point of 24 years' of imprisonment for the second count and reduced it to 16 years. He imposed a sentence of two months for the first count. He ordered the two sentences to run consecutively, resulting in a total term of imprisonment of 16 years and 2 months.

3. Apart from asserting that the sentences are wrong in principle and manifestly excessive, Mr Hoosen for the Applicant raises two substantive grounds of appeal. The first ground is that on the second count, the starting point of 24 years of imprisonment is too high. The second ground is that it is wrong in principle that no reduction at all was given to reflect the youth of the Applicant who was 18 years of age at the time of the offences.

4. In the present case, the attention of the trial judge was drawn to The Attorney General v Graeme Mutton, Application for Review No.8 of 1991 (18th March 1992, unreported), where a starting point of 20 years was adopted for 1,205.81 grammes of salts of esters of morphine, commonly known as heroin. In passing sentence, the trial judge referred to R v Ching Kwok Hung [1991] 2 HKLR 125, where the Court of Appeal laid down sentencing tariffs for trafficking in "ice" and held that if the quantity of "ice" exceeded 600 grammes, the sentence imposed should range from 18 years upwards of imprisonment. Considering that the quantity of "ice" involved in the present case was more than three times that mentioned in Ching Kwok Hung, and regarding the Applicant's age of 19 years as not constituting a strong mitigating factor, the trial judge adopted a starting point of 24 years' imprisonment. He then took into account the guilty plea and the relative youth of the Applicant to reduce the sentence by one-third, reaching a sentence of 16 years' imprisonment for the second count.

5. We do not find that the reasoning and the mental process of the trial judge can be faulted. He was referred to the authorities of R v Lau Tak Ming [1990] 2 HKLR 370, The Attorney General v Dil Bahadur Gurung [1995] 1 HKCLR 237, R v Chan Chi Ming [1979] HKLR 491 and R v Cheng Yeung [1989] 2 HKLR 258, which suggest that where the quantity of heroin is over 1,000 grammes, the upward curve of tariff of sentences begins to level-off when it reaches the plateau of 20 years.

6. These authorities were evidently in the mind of the trial judge when he used a starting point of 24 years, although the quantity of "ice" seized under the second count was three times more than the 600 grammes mentioned in Ching Kwok Hung.

7. In this Court, we are referred to a number of other authorities. In R v Yip Kee Chun, Crim App. 91/94 (14th March 1997, unreported), for trafficking in 3,718 grammes of heroin, a starting point of 21 years was adopted by the trial judge, and "no suggestion has been made that that was not a proper starting point" to the Court of Appeal. In Chan Kwok Hung, Crim App. No.67 of 1996, (18th July 1996, unreported) where 2,943.63 grammes of "ice" were involved, the Court of Appeal held that a starting point of 21 years' imprisonment should be adopted. In R v Thapa Tekendra, Crim App. No.22 of 1997, (16th May 1997, unreported) which involved trafficking in 6 kilogrammes of "ice", the Court of Appeal considered that a starting point of 25 or 26 years would be appropriate.

8. In the present case, however, one must also bear in mind that apart from the "ice", there was also a quantity of 2,432.85 grammes of cannabis involved in the second count. We accept the submission of Mr Luk for the HKSAR based on The Attorney General v Tuen Shui Ming [1995] 2 HKCLR 129 that for that quantity of cannabis alone, a sentence of 12 months' imprisonment was warranted. We are of the view that in all the circumstances of this case, the starting point adopted by the trial judge may be slightly on the high side but within range, and this Court should not interfere.

9. Regarding youth of the Applicant, it is only necessary to refer to R v Hui Chi Wai, Crim App. 353/95 (19th October 1995, unreported), where a 20 year-old Defendant was sentenced to seven years' imprisonment for trafficking in 64.76 grammes of heroin. There the Court of Appeal said :

"The sentence which was imposed was less than the sentence indicated in the Lau Tak-ming guidelines. It would appear that Burrell J did make a reduction in sentence to reflect the relative youth of the applicant and his previous clear record. However, it must be stated that the applicant was fortunate to receive any reduction in his sentence on account of his youth as at his age this was not a factor which he was entitled to benefit from."

10. There is another ground of appeal that was raised in the Applicant's letter of 22nd April 1999 to this Court where it is stated that he had fully co-operated with the police and confessed to the offences at a very early stage. In fact, the point was also made by defence Counsel to the trial judge when he addressed the Court on sentencing.

11. In the present case, apart from pleading guilty at the earliest possible moment, the Applicant had, as evidenced from all the materials before us, fully co-operated with the police in the investigation of the offences with which he was charged. It would have been within the discretion of the trial judge to give a greater reduction than the usual one-third reduction for the guilty plea to take into account the Applicant's co-operation with the police. However, this is not a case where the Applicant gave assistance to the prosecution in other cases as in R v Chan Fu Kui [1986] HKLR 967 where a reduction for full assistance would be as much as 50%.

12. All in all, we do not consider that the sentences passed by the judge are either manifestly excessive or wrong in principle. We therefore dismiss the application.