HKSAR v. NGAI KA KI

IN THE COURT OF APPEAL

1996, No.516
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced one count of trafficking in dangerous drugs. It was particularized that on 8th February 1996 at Flat A, 10th floor, Skyway Mansion, Portland Street, Mongkok, ("the subject premises") he unlawfully trafficked in 1,749.17 grammes of a mixture containing 1,231.51 grammes of heroin hydrochloride and 492.51 grammes of a crystalline solid containing 472.25 grammes of methamphetamine hydrochloride. The applicant pleaded guilty to that charge and was sentenced to imprisonment for 16 years by Deputy Judge Wilson. He now seeks leave to appeal against that sentence.

2. The facts revealed that on the day of the charge a surveillance team from the Narcotics Bureau kept the subject premises under observation and that, at 0050 hours, they saw the applicant was about to leave the premises. A small packet of ice was found hidden in his underwear. The premises were then searched and from various parts thereof the drugs, the subject of the charge, and large quantities of paraphernalia associated with packaging of dangerous drugs were found. It was quite clear that this was a distribution centre for heroin and ice.

3. The applicant in a video tape interview said that he was employed by a person called Ah Lung, that he had been lured into the drug trade about a month before and that he sold and delivered ice and heroin. He said that he had earned about $100,000 for the past month.

4. The premises were rented by him in about mid-January 1996.

5. When sentencing the trial judge said:

"The guidelines for the heroin alone - the quantity of heroin alone here leads to 20 years upwards, that is to say, without even considering the drug known as ice. It is fair to say, as his counsel points out, that, in his favour, he has pleaded guilty at the earliest opportunity. He has, I am told, given some information to the police. I understand that in the result it was of limited use, but I have no reason to suppose it was not all he could give to the police.

In all the circumstances, taking a global view of the large quantities of two different drugs at the same place, I take the starting point of 25 years. I give a discount for his plea of guilty, his cooperation and for his information of nine years, and in the result impose 16 years' imprisonment."

6. The applicant now urges that the sentence was too severe saying that he is deeply remorseful, that he cooperated with the police and that he has filial obligations.

7. The quantity of heroin involved would by itself have called for a starting point for sentence in the vicinity of 24 years but also involved was a quantity of ice which, had it stood alone, would have called for a starting point of 16 years. The overall starting point cannot, of course, be assessed by adding those two periods together. A sentencing court must look at an overall starting point taking into account the overall quantity and bearing in mind that the sentencing scale for each type of drug is heavily loaded at the lower end of the scale. The judge clearly had totality in mind and his overall starting point of 25 years cannot be criticized. Taking into account the plea and the limited cooperation, he gave a discount of nine years. Again, in our view, this cannot be criticized. The imposition of a sentence of 16 years was, therefore, proper. It was neither wrong in principle nor too severe and the application must be refused.