HKSAR v. WAN SIU FAI

CACC473/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 473 OF 2002

(On appeal from HCCC 185 OF 2002)

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J U D G M E N T

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Pang J (giving the judgment of the Court) :

1. On 3 September 2002, the applicant Wan Siu Fai appeared before Mr Justice Jackson and pleaded guilty to two counts of trafficking in dangerous drugs and one count of possession of firearms and ammunition without a licence. For the trafficking counts, he was sentenced to nine years and 16 years' imprisonment respectively. For the possession of firearms count, he was sentenced to eight years. The learned judge further ordered that the prison terms of the trafficking counts are to be served concurrently and three years of the firearms count to be served concurrently with the balance of five years to be served consecutively. The effective prison term is therefore one of 21 years. The applicant now applies for leave to appeal against his sentence.

2. The facts of the case as confirmed by the applicant are that in the morning of 13 November 2001, officers from the Narcotics Bureau saw the applicant coming out from a hut located at Tsat Sing Kong, Pat Heung in Yuen Long. At the time he was carrying a bag in his right hand. The applicant was stopped and subsequent search of the bag produced two slabs of suspected dangerous drugs. The officers managed to enter the hut by using keys found on the applicant and a search revealed a large quantity of suspected dangerous drugs in various forms and varieties. The officers also seized an automatic pistol and 40 rounds of ammunition in a drawer under a bed in one of the rooms. Examination of the suspected dangerous drugs by the government chemist showed that the two slabs seized from the applicant's bag was a mixture containing 273.78 gms of heroin hydrochloride. This forms the subject matter of the 1st count of trafficking. Suspected drugs seized from the hut were found to contain :

(a) 36,458 tablets containing 523.14 gms of midazolam and 1,724 tablets containing 1.61 gms of estazolam;

(b) 44.12 gms of a crystalline solid containing 43.41 gms of methamphetamine hydrocholoride;

(c) 530.63 gms of a mixture containing 402.46 gms of cocaine; and

(d) 930 gms of a mixture containing 699.69 gms of heroin hydrocholoride.

This lot of drugs forms the subject matter of the 2nd trafficking charge.

3. The learned judged adopted a global starting point of 24 years for the trafficking charges and then reduced it to one of 16 years for the plea. The starting point for the firearms count was 12 years and was likewise reduced to eight years. The grounds of appeal state that the respective starting points of the offences were too high and, in any event, the learned judge had not applied the totality principle correctly so that the resulting total sentence of 21 years is manifestly excessive.

4. At the hearing this morning, Mr Wu for the applicant informed this court that he no longer wishes to pursue the appeal against the sentence on the trafficking counts but only wishes to address us on the sentence in respect of the count for possession of firearms.

5. The firearms seized in this case was an automatic pistol and 40 rounds of ammunition. It is noted that the ammunition is of a different calibre and therefore could not be fired by the pistol. The pistol itself was not loaded, and at the time of the seizure it is common ground that there is no sign that it had been fired since it was last cleaned. These are facts which had been highlighted before the learned judge during the applicant's plea in mitigation by senior counsel in the court below. It is with that in mind when the learned judge assessed the appropriate starting point to be one of 12 years' imprisonment. This term is well within the guidelines laid down in the case of R. v. Ho Chun [1992] 1 HKCLR and Mr Wu so conceded.

6. Mr Wu however argues that a more substantial part of the 12-year sentence in the firearms count should have been ordered to be served concurrently with the trafficking counts. In support of his argument, Mr Wu embarked upon a comparison exercise by citing to us the case of HKSAR v. Wong To, (unreported) CACC508/2002, in which the appellant was sentenced to five years and four months' imprisonment after plea for possession of a 7.26 mm pistol, an anti-riot pistol plus five rounds of ammunition.

7. Suffice it for us to say that the sentence imposed by the trial judge in that case was too lenient and a departure from the guidelines as laid down in Ho Chun. We must add that this court find no assistance whatsoever from such futile exercise of comparison undertaken by Mr Wu. Time and again this court has discouraged counsel on appeal from embarking upon such exercises for the simple reason that the facts of each case coming before the court must necessarily be unique.

8. The learned judge clearly had in his mind the totality principle when he ordered that five years of the firearms count be served consecutively with the trafficking counts. This is what he said :

"The most important sentencing principles applicable to your case today are those of deterrence and totality. And whilst I intend to give you full credit for your pleas of guilty, it is those two principles which have primarily exercised my mind. ....

Even giving you full credit for your pleas of guilty I am persuaded that the resulting sentence would be too great in terms of totality. ...."

9. We are of the view that the learned judge was entirely correct in his application of the legal principles involved and in his approach in sentencing the applicant as he did. We see no merit in this application and, accordingly, the application for leave to appeal against sentence is dismissed.