LEE WING SING v. R.

1993, No. 314
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Bewley, J.:

1. The applicant pleaded guilty to two charges of trafficking in dangerous drugs before Leong J. The total quantity of the mixture was 209 grammes and the quantity of heroin was 96 grammes. He was sentenced on 10th June 1993 to concurrent sentences of 4 years' and 8 years' imprisonment.

2. The applicant was intercepted in the street on the 19th August 1992 and he was searched. Two plastic bags containing 50 large packets and 29 small packets of drugs were found. This is the subject of Count 1. The applicant led the police to an unfinished room nearby, the door of which was opened by a key that was found in his pocket. In this room six plastic bags of dangerous drugs were found, the subject of Count 2; also packing paraphernalia and equipment for crushing and weighing drugs. The applicant admitted that he lived in the room and that it was rented by a friend who himself stayed there occasionally. He said that, after packing, all the drugs would be sold at a nearby cooked food centre, the larger packets for $240 each and the smaller ones for $120 each.

3. The applicant is 20 years of age and was educated to Form 3. He has three previous convictions, none of which are similar. He is not a drug addict. It was urged in mitigation that he was employed to pack the drugs and to deliver them to street sellers at a rate of $500 per delivery. He had become involved because of a gambling debt.

4. The judge, in sentencing the applicant, said that he disregarded the previous convictions, he did not consider the applicant's youth a mitigating factor, but he took the profit from the sale as an aggravating factor. From a starting point of 10 years' imprisonment he allowed a two year discount for the plea of guilty, full confession and co-operation with the Customs Officers.

5. On appeal Mr Dykes urges four grounds: (i) that the starting point of 10 years' imprisonment was too high; (ii) that the judge failed to accord the appellant sufficient credit for his plea of guilty to the second count; (iii) that he failed to pay sufficient regard to the fact that the appellant was only 20 years old; and (iv) that the judge regarded as an aggravating factor the fact that the appellant derived a benefit from trafficking in dangerous drugs.

6. According to the tariff in R. v. LAU Tak Ming [1990]2 HKLR 370 a quantity ranging from 50 to 200 grammes should attract a sentence of between 8 and 12 years. On this basis a defendant would need to be in possession of some 130 grammes to be facing a starting point of 10 years' imprisonment. On a strict mathematical application of the tariff, 96 grammes would produce a starting point of some 9 years and 4 months. It seems to us that the judge took a higher starting point because of the benefits from the sale. In our view it was not wrong to take the profit and the degree of involvement of the applicant into account. Indeed LAU Tak Ming encourages a sentencing judge to do so.

7. The need for cash on account of gambling debts is not a mitigating factor, nor is the applicant's youth. The judge was generous with the discount given for the plea of guilty, since the applicant was caught red-handed and had no real defence. The sentences imposed were within the discretionary range available to the judge and we do not think we should interfere. For these reasons, the application is refused.