R. v. SHRESTHA, BIRENDRA KUMAR

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J U D G M E N T

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Litton, J.A.:

1. This is the judgment of the court.

2. On 3rd April 1992 the applicant was convicted by Her Honour Judge Chua of one' charge of conspiracy to traffic in cannabis resin. The co-conspirators named in the charge were Patrick Steven Ansley and Andrew Robert Morris. As alleged, the conspiracy existed between 1st and 13th December 1991.

3. At trial many of the facts alleged by the prosecution were admitted pursuant to section 65C of the Criminal Procedure Ordinance. The evidence at trial can be summarised as follows.

    (1)    On 9th December 1991 the applicant met Morris and another male in Central. The applicant took from them a rucksack and he then met Detective Senior Inspector Goode at the Mandarin Hotel. DSI Goode was then posing as a drug dealer. The rucksack contained about 920 grammes of cannabis. The applicant handed the rucksack with the drugs to Goode who then gave him $18,400.

    (2)    The applicant met DST Goode at the Mandarin Hotel again on 10th December 1991. It was arranged that the applicant would supply a further 10 kilogrammes of cannabis at $20,000 per kilo and that each of them, that is to say the applicant and Goode, would pay Ansley 2¹/₂ per cent commission.

    (3)    Between 11th and 13th December 1991 the applicant was in China with Morris. There they met two Pakistani men. They received a canvas bag which contained bags of cannabis. The applicant helped Morris to strap six of those bags of cannabis to his body and promised Morris a reward of HK$6,000 per kilo for carrying the cannabis into Hong Kong.

    (4)    On 13th December 1991 when the applicant and Morris returned to Hong Kong, they were arrested.

4. The case against the applicant was overwhelming and most of the facts as we said above were not in dispute. The applicant's defence summarised by the District Judge was this:

"He claimed that his brother died from heroin overdose. He decided to wage war against heroin dealers. He wished to become a police informer. To that end he arranged the deal, which constituted the charge in order to get to meet the supply."

As the District Judge remarked in sentencing, how the applicant could have thought that by mixing with minor expatriate dealers in cannabis that could have led him to penetrate local heroin syndicates is beyond belief. There is considerable substance in that observation. But if that was the applicant's motive for entering into the conspiracy charged, he is plainly nevertheless guilty of the offence as charged. For these reasons, the application to appeal against conviction is dismissed.

5. We now deal with the applicant's appeal against sentence. After trial and conviction the applicant was sentenced to a term of 39 months' imprisonment. tHERE are, in effect, two grounds advanced for saying that the sentence was excessive.

6. One, the applicant says he is aggrieved because he was instrumental in the exposure and conviction of his co-conspirators, a factor which he says the District Judge failed to take into account. Having heard his explanation for this assertion we are satisfied that there is nothing in the point and the District Judge rightly disregarded that.

7. The other ground is this : upon their pleas of guilty the co-conspirators were sentenced to respectively 24 and 30 months' imprisonment. The applicant says that having regard to those sentences, the fact that he was sentenced to 39 months after trial is excessive. This, in our view, is a matter which was plainly within the scope of judgment and discretion of the trial judge. The sentence of 39 months is not so far from norm as to justify our interference. The appeal against sentence is therefore dismissed.