R. v. SIU Yun-sang

NO. 479 OF 1994
CRIMINAL APPEAL

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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J U D G M E N T

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Seagroatt, J.:

1. On the 22nd August 1994 this Applicant pleaded guilty to three offences of trafficking in heroin. All related to the same date in September 1993 when he was arrested in conjunction with the 2nd Applicant, following surveillance by Custom Officers. He was found in possession of a mixture containing 28.12 grammes of heroin; at some premises to which he had access, a further quantity was found representing 314.27 grammes of heroin, and at his home, a further quantity of mixture was found with 136.74 grammes of heroin. The total was 479.13 grammes of heroin.

2. He is 64 years of age. He has a history of pneumoconiosis, prostatitis and drug addiction. The learned judge before imposing sentence observed that age and the deprived background are of no value in mitigation. In relation to such offences as trafficking in dangerous drugs, we agree in principle. In calculating sentence the learned judge gave varying sentences, discounted to give effect to his pleas of guilty.

3. On the 1st count it was 4 years, discounted from 6½ years; on the 2nd count 9 years discounted from 13½ years, and on the 3rd, 6½ years discounted from 10 years. He then ordered the 4-year term to be concurrent with the 9-year and 6½-year terms, but that the 9-year term would commence 18 months into the 6½-year term. The overall result was a 10½-year term.

4. The Appellant contends that insufficient regard was had to his plea, his remorse and the facts of his age and deteriorating health. As far as his age and health are concerned, we have considered afresh the mitigation put before the learned judge. It is important to note that this Appellant had been convicted of offences of trafficking in dangerous drugs when he was 46 years of age, 52 years of age and 58 years of age. On the last occasion, he received a 5 years sentence with over $91,000 being confiscated. That sentence means that he was released from prison not many months before being involved in the trade again. That removes as a valid point his age as a consideration. He is not being sentenced on his record but that record cancels the effect of age as any mitigation.

5. We have looked at the basis of the sentencing employed by the learned Judge. Applying the guidelines in Lau Tak-ming, decided by this Court in May 1990, the President of this Court being a member of the court in that case, the range for the Appellant's trafficking in a total of 479 grammes of heroin is 15 - 20 years. After trial, we think the correct term would have been about 16 - 17 years. Discounting that for his plea of guilty and co-operation, produces a term in the region of 11 - 12 years. By the route taken by the learned judge, he arrived at 10½ years.

6. We cannot say such a term is excessive, indeed, it is appropriate and accordingly, this application is dismissed.