HKSAR v. CHAN CHUNG KIT

CACC 295/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 295 OF 2001

(On Appeal from HCCC 4/2001)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1. On 1 August 2001, the Applicant, Chan Chung Kit, was convicted by Hartmann J in the Court of First Instance, on his own plea of guilty, of a single count of trafficking in a dangerous drug and was sentenced to serve 14 years' imprisonment.

2. The Applicant filed a notice of application for leave to appeal against his sentences on 19 August 2001. He appears in person, legal aid having been refused on 24 September 2001. There are no grounds of appeal pleaded in his notice of application for leave to appeal. Before us today he essentially repeats his mitigation and asks for his sentence to be reduced.

3. The facts are very simple: at around 12 noon on 23 September 2000, officers from the Narcotics Bureau kept observation in Tong Kung Ling Village, Sheung Shui, New Territories. At 7:30 p.m., they saw a taxi stop outside No. 45A Tong Kung Ling Village. The Applicant got out of it; he held a paper bag in his left hand. A police officer went up to him and revealed his identity. The Applicant tried to run away. He was caught and subdued by two police officers. One of them told him that he was suspected of trafficking in dangerous drugs and asked to search him. He was searched and three blocks of suspected heroin were found inside the paper bag he was carrying. He was asked what they were, but made no reply. He was arrested for trafficking in dangerous drugs and cautioned. In reply to the caution he said: "Sir, please give me a chance".

4. The Applicant was taken to the Narcotics Bureau Headquarters for enquiry. Later, after examination by an Identification Branch Officer, two impressions lifted from the paper bag that he carried were found to be the Applicant's right palm print and his left ring finger print.

5. The Government Chemist's examination of the three blocks in the paper bag found them to be a mixture weighing 2,103.01 grammes, containing 1,803.15 grammes of heroin hydrochloride. It was, as the judge commented in his sentencing remarks, 'reasonably pure' heroin and it had an estimated 'street' retail value of $903,467.73.

6. In his sentencing remarks the judge, without referring to the case by name, adverted to the guidelines given in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 and took a number of matters raised in mitigation into account in arriving at his sentence. These included:

(1) The Applicant's youth: the Applicant was 19 at the time of the offence having been born in September 1981. As the judge correctly commented, he was not of extreme youth. We reiterate what this Court has said many times before: save in very exceptional circumstances, young age is not a mitigating factor when it comes to sentencing drug traffickers.

(2) The Applicant's guilty plea and what the judge saw being his corporation with the authorities.

(3) The Applicant's family background: the Applicant was out of work when he committed this offence. His wife and he have a young child. He claimed that he was to receive a reward of only $3,000 for trafficking in the heroin.

(4) The Applicant's criminal record: the Applicant had previous convictions for criminal damage, misleading a police officer, possession of dangerous drugs and fighting in a public place.

7. We believe that the judge took into account matters which in drug trafficking cases are not mitigation. Namely; the Applicant's young age; we stress that the judge was not dealing with a person of extreme youth. And that the Applicant had a young family, had lost his job and that his family were showing support.

8. The judge also used the matters raised in mitigation to arrive at a starting point sentence. With respect, the starting point should be arrived at by reference to the offence, before addressing the mitigating factors.

9. As the judge rightly appreciated, the very great weight of the narcotic content of the heroin, 1.8 kilogrammes, took this case outside the upper tariff band of 600 grammes identified by this court in Lau Tak Ming as attracting a sentence of 20 years' imprisonment after trial. He took a starting point sentence of 21 years' imprisonment for the offence and reduced that by one-third, to 14 years' imprisonment, to reflect the matters that he believed went to the Applicant's favour in mitigation of sentence and in particular the Applicant's guilty plea.

10. Given that the very large amount of heroin involved in this case and its purity, the starting point sentence of 21 years' imprisonment was, in our view, too low. It therefore follows that the sentence of 14 years' imprisonment arrived at after the discount given for mitigation can in no way be considered manifestly excessive. Indeed, we comment that this Applicant should count himself lucky to have received such a generous sentence.

11. The Applicant's application for leave to appeal against his sentence is dismissed.