R. v. LEE KWOK KEUNG

IN THE COURT OF APPEAL

1996, No. 595

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court): On 18 October 1996 the applicant pleaded guilty before Gall J to an offence of permitting premises of which he was a tenant to be used for trafficking in dangerous drugs. The drugs were commonly known as "ice" and the offence is contrary to s.37(10(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. He was sentenced to 6 years imprisonment. He now seeks leave to appeal against sentence.

The facts

2. On 8 May 1996 the applicant and a man called "Mok" were stopped by the police when leaving the premises of which he was a tenant. Mok had some drugs on him. The rest were found in a room in the flat, 310.52 grammes in total. Both Mok and the applicant had keys for the flat and the room on them. The applicant admitted that he came to know that Mok had "ice" for sale when he was living in the flat about 1 week before the arrest. He also admitted that he had seen trafficking equipment in Mok's room and that Mok had told him that the "ice" was for sale. He contended and the judge below accepted that Mok was paying no rent.

The sentence

3. The judge said that the only real mitigation was the plea of guilty as the applicant was not of good character. We must add at once that he had no previous convictions for anything similar to this. The judge also accepted that he had no benefit from the offence, but the drugs operation that he permitted to take place was a significant one.

4. The judge took 9 years imprisonment as his starting point and reduced it on the grounds of the mitigating factors - particularly the plea - to 6 years.

The application

5. The applicant asks for the same matters that were taken into account by the judge be considered. Also several other matters - two members of his family are seriously ill - and he asks to be released soon to take care of them. He submits that he asked Mok to take the "ice" away from the flat before he was arrested. He also submits that in other cases accused have been dealt with much more leniently. Those, of course, are matters we take into account in considering this application.

6. This offence carries a maximum of 15 years imprisonment. So, of course, it is not as serious as actual trafficking. It is an offence which varies greatly in its gravity and it is not an offence for which this Court could ever lay down any useful guidelines. Clearly, however, the extent of knowledge and involvement of an accused person together with the amount of financial benefit if any are important considerations. Taking into account all that this been urged upon us and noting that for an offence in trafficking in the quantity of "ice" involved in this case the guidelines in the Attorney General v Ching Kwok-hung [1991]2 HKLR 125 would require a sentence after trial of some 14 years which after plea would be reduced to 9 years - the exact sentence that the judge took as his starting point - we consider that the judge's approach in this case cannot be faulted. The sentence was neither wrong in principle nor was it manifestly excessive, heavy sentence though it is.

7. In those circumstances this application is refused.