HKSAR v. CHEUNG HON YIU

CACC234/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.234 OF 2003

(ON APPEAL FROM HCCC 107 OF 2002)

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J U D G M E N T

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Hon Gall J (giving the judgment of the Court) :

1. The applicant was convicted on his own plea on 3 June 2003 of one count of trafficking in a dangerous drug and was sentenced on the same day to 12 years' imprisonment. He now seeks leave to appeal that sentence.

2. The facts admitted to be true by the applicant were that on 4 December 2002 the applicant arrived at the Customs Arrival Hall at Lo Wu Control Point from the Mainland. He was intercepted by a Customs Officer who sought to search his person. Prior to the search the applicant was asked if he had anything to declare and he replied that he did not. Upon being searched there was found at the small of his back and underneath his clothing one packet of a substance which the searching officer suspected to be heroin. The applicant was asked what the substance was and he replied that it was Viagra. A field test was performed upon the substance that returned a positive result for heroin. The applicant was arrested, cautioned and admitted that he had been given the drugs by a man named Ah Wah to bring into Hong Kong for a payment of $1,000. He was to bring the drugs to Sheung Shui Train Station and hand them to Ah Wah.

3. The drug was subsequently examined by the Government Chemist and found to be 0.49 kg of a mixture containing 0.44 kg of heroin hydrochloride. The retail value of the drugs was found to be $278,320.

4. The sentencing judge referred to R. v. Lau Tak Ming & Yeung Wai Shing & Ors [1990] 2 HKLR 370 where this court set a tariff for the sentences to be imposed after trial for various quantities of heroin in its purest state. The quantity of the heroin in which the applicant trafficked was 440 grammes of pure heroin. This fell in band five set out in Lau Tak Ming and attracts a sentence of between 15 and 20 years after trial.

5. The sentencing judge adopted a starting point of 18 years' imprisonment and took into account his clear record, the fact that he was co-operative and the fact that he entered a plea of guilty to the count at the first opportunity. To give effect of this mitigation she reduced the starting point by one-third and arrived at a sentence of 12 years' imprisonment.

6. The sole ground of appeal is that the sentence imposed was manifestly excessive in that the range of sentence from 15 to 20 years as set out in Lau Tak Ming covers a quantity of drug from 400 to 600 grammes and that the quantity trafficked by the applicant falls at the bottom end of that band. Nonetheless, the sentencing judge took as a starting point 18 years' imprisonment which falls at the upper portion of the band.

7. Mr Ramanathan for the appellant argues that there was no justification for the sentencing judge to adopt a higher point in the band and that the starting point is therefore manifestly excessive.

8. Mr Madigan in his submission for the respondent accepts that there appears to be no reason why the judge took a starting point above the mid point of the band when the quantity of the narcotic fell at the minimum for the band. We accept that the tariff set out in Lau Tak Ming should not be mathematically applied and judges are not bound strictly by calculations derived from the bands and the quantities of drug set out in that judgment. If however the sentencing judge is to depart significantly from an approximation of the sentence to be derived from the quantity of drugs then there should be a good reason for doing so. In respect of this applicant an appropriate starting point would have been 15 years' imprisonment which after giving him the benefit of his good record, co-operation and early plea would have resulted in a sentence of 10 years' imprisonment.

9. This application for leave to appeal is granted and treated as the appeal. The appeal is allowed and the sentence set aside to the extent that a period of imprisonment of 10 years' imprisonment is imposed in place of the sentence of 12 years' imprisonment.