HKSAR v. YUEN GANG SHING

IN THE COURT OF APPEAL OF THE HKSAR

1997, No. 303

(Criminal)

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J U D G M E N T

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Liu JA:

1. With his co-defendant the Applicant faced one charge of trafficking in a dangerous drug before Deputy Judge Wright. The allegation against him was that he and his co-defendant unlawfully trafficked in a dangerous drug on 23 October 1996 at Sun Fei Ma Restaurant in Temple Street. The quantity involved was 83.28 grammes of a mixture containing 36.96 grammes of heroin hydrochloride. The Applicant pleaded guilty to the charge whilst his co-defendant Lam pleaded not guilty. Lam was found guilty after trial.

2. The Judge selected a starting point of 6 years for the purposes of sentencing for Lam, and as for the Applicant, the Judge sentenced him to 4 years and 8 months with 3 years and 6 months of the sentence to run consecutively with the sentence he was then serving.

3. The Applicant feels aggrieved by his sentence and seeks leave to appeal against it. It would appear that his main concern is the apparent difference in the starting point adopted by the Deputy Judge for his sentencing and that adopted for his co-defendant who had pleaded not guilty. The Applicant maintains that his sentence after discount is plainly insupportable and excessive because on the basis of 4 years and 8 months, the Judge must have adopted a starting point in his case of 7 years, not 6. Clearly, his calculation is correct but is the Applicant right?

4. The offence of the Applicant was in fact committed whilst he was on bail. The Deputy Judge regarded that as an aggravating feature. In his Reasons for Sentence, the Deputy Judge explained clearly to the Applicant that but for the aggravating feature, the same starting point of 6 years would have been adopted in his case.

5. We can find nothing in the reasoning of the Deputy Judge, which could be open to criticism. Commission of any offence whilst on bail is unquestionably an aggravating factor to be taken into account as did the Deputy Judge. The Judge gave the Applicant a proper discount of one-third for his guilty plea. For the quantity in the charge, the starting point could not be said to be erroneous. The Applicant was decidedly different from his co-defendant who did not commit the offence while on bail. Having taken into consideration mitigation advanced on behalf of the Applicant, the court sentenced him to 4 years and 8 months. In the circumstances, the sentence imposed upon the Applicant could in no way be said to be manifestly excessive. The Judge was neither wrong in principle nor wrong in his approach to a 7-year starting point. There is no substance in the application which should be dismissed and we so dismiss it.