R. v. LIU TUNG CHEONG

IN THE COURT OF APPEAL

1994, No. 635

(Criminal)

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J U D G M E N T

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

1. The applicant in this matter was found guilty after a trial before Duffy J and a jury of trafficking in dangerous drugs. The offence was particularised as follows that he on 18 February 1994, at Room A, 1/F, 28 Kim Shine Lane, Kowloon unlawfully trafficked in a dangerous drug, namely 229.45 grams of a mixture containing 91.14 grams of salts of esters of morphine. The drugs were found by the police on searching the applicant's premises where they also found a number of articles which are usually involved in the packaging of drugs.

2. When summing-up the trial judge described the police search in the following terms:

"The prosecution ask you to look at what is found in the room with the drugs and ask you to infer that the defendant was dealing in or with the drugs. The prosecution ask you to find that this was a mini-drug distribution centre. They ask you to look at the grinder, the scales, the fact of the small quantities of drugs in 2 plastic bags and traces of drugs in the phial. They ask you to look at the number of plastic bags that was found and they ask you to conclude from all of that that the defendant was packaging these drugs, was breaking down the blocks of heroin into smaller quantities for distribution or sale."

3. There was no doubt that there was evidence which justified the trial judge's description of the operation as "a mini-drug distribution centre". When sentencing the trial judge said:

"You have a string of convictions, criminal convictions, some of which are for criminal offences. (That was probably said at the time and what was meant there was for drug offences).

You do not seem to learn as you get older. The more offences you commit, the greater will be the penalty. The guidelines which are handed down by the Court of Appeal for offences of this nature, considering the amount involved, is a sentence within a range of 8 to 12 years. I think it appropriate that in all of the circumstances and having regard to your background, that a proper starting point is 12 years."

4. The trial judge was, we have no doubt, rightly concerned that this was "a mini-distribution centre" and considered that the offence merited a sentence in excess of that which would be thrown up by the application of a strict mathematical approach to the tariff sentences set out in R. v. Lau Tak-ming.

5. Mr Shum, who appears for the applicant, reminds us that if the mathematical approach was applied it would have produced a sentence of 9 years and 3 months but he concedes that the judge is not bound to apply that approach but is entitled to take into account all of the circumstances of the offence.

6. We are concerned, however, by the following observations made by the judge when sentencing:

"You do not seem to learn as you get older. The more offences you commit, the greater will be the penalty."

We are certain that this experienced judge was not indicating that the sentence was being increased because the applicant had a criminal record. There was insufficient evidence to treat him as a recidivist. However his choice of words was unfortunate and may well have left the applicant under the impression that he was receiving a longer sentence because he had a criminal record. In such circumstance he would be entitled to harbour a legitimate sense of grievance. Given the foregoing we look with particular care at the sentence imposed. Having done so we are persuaded that so substantial a departure from the tariff was not warranted.

7. We are fully conscious of the seriousness of the offence but are, nonetheless, satisfied that we must allow the application for leave to appeal out of time, treat the hearing of the application as the hearing of the appeal and order that the sentence be varied from one of 12 years to one of 10½ years.