R. v. HO KAM-WAH and Another

1996, Nos.123 and 141

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Sears J: (Delivering the judgment of the Court)

1. These two appeals were heard together. These two applicants appeared before Keith J. on 31 January 1996 having been committed from the Magistrates Court on various drug offences. There were three people altogether involved in a variety of drug charges.

2. A person called Wu Ming-hoi pleaded guilty to three offences where the judge took the starting points of 12 years, 9 years and 6 years and sentenced him in totality to 12½ years.

3. The 2^nd applicant here Chan Chi-kwan pleaded guilty to two offences of smaller amounts of heroin : 230 grammes on 19 May, 87 grammes on 9 May, and on the day of his arrest, 13 July, he pleaded guilty to trafficking in 1,518 grammes of heroin.

4. The judge looked at the starting points for the two offences in May and June and took the starting points of 12 years and 9 years and a starting point of 21 years for the last offence. However, he had regard to the totality principle and thought that the correct starting point was one of 21 years. That might be thought, in view of the large quantity of heroin found on the last occasion, to be on the low side. He took into account the assistance which had been given to the police which he described as not insubstantial. He also took into account all that had been urged upon him and reduced that sentence from one of 21 years to 10½ years.

5. It has been urged before us that a greater discount should have been given. We are unable to agree. In our judgment, the starting point, as we have said, was on the low side, the discount which the judge gave was generous. The application for the Chan, the 2^nd applicant is therefore dismissed.

6. As far as the 1^st applicant Ho is concerned, he faced only one charge, that is similar to the third charge of the 2^nd applicant Chan, trafficking in 1,518 grammes of heroin. Unlike his co-defendants, he had no previous convictions. The judge took a starting point of 21 years again which, as we have said before, might be considered to be on the low side, discounted it by 7 years to reflect the plea of guilty and a further year for the assistance which had been given to the police and 6 months for his good character which reduced the sentence to one of 12½ years.

7. It has been urged upon us here by Mr Macrae for the 1^st applicant that there might well be a sense of grievance in that his total sentence is similar to the total sentence passed upon the defendant Wu.

8. In our judgment, the court should examine whether or not the sentence which was passed upon this applicant reflected his criminality in the events which he faced. In our judgment the starting point cannot in any way be flawed as we have said it was on the low side. The discount which the judge gave properly reflected all those matters that were placed before him. Consequently, this application is also refused.