HKSAR v. YAU PO HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 245
(Criminal)

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J U D G M E N T

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Nazareth Atg CJHC (giving the judgment of the Court) :

1. The applicant, Yau Po-hung, applies out of time for leave to appeal against the sentence of 18 years imposed upon him by Deputy Judge Jackson sitting in the Court of First Instance on 30 July 1997. An affidavit seeking to explain his delay has been filed.

2. That sentence was imposed upon a charge of trafficking in dangerous drugs. It was one of two charges upon which the applicant appeared before the judge. The first count was of manufacturing a dangerous drug contrary to s.6(1)(a) and (2) of the Dangerous Drugs Ordinance. The particulars were that the applicant and one Chan on or before 23 September 1996 in Room A, 2nd floor, No. 2 Pak Man Street, Kowloon, otherwise than under and in accordance with the Dangerous Drugs Ordinance or a licence unlawfully manufactured a dangerous drug, namely heroin hydrochloride. To that charge the applicant pleaded not guilty.

3. However, he pleaded guilty to the second count which was the charge of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance. The particulars were that he and Chan at the same place and time unlawfully trafficked in a dangerous drug, namely 3,770.88 grammes of a mixture containing 3,058.25 grammes of heroin hydrochloride.

4. The facts in outline were these. The two defendants were in a flat which was under surveillance by the police. They were seen escaping from a window. Both were apprehended. They were taken to the flat in which the drug, which was the subject matter of the charge, was found. Deputy Judge Jackson in sentencing the applicant referred to the guidelines in R v Lau Tak-ming [1990]2 HKLR 370 and said this:

"Had the defendant not pleaded guilty but been convicted after trial I would have sentenced him to a term of some 27 years' imprisonment. However, fully recognising his plea of guilty, I reduce that sentence to one of 18 years' imprisonment, ..."

5. Mr Macrae, for the applicant, going directly to the merits of his appeal in accordance with the usual practice of this Court, well recognised that the applicant was accorded the full usual one-third discount for his plea of guilty. He properly and commendably, therefore, focuses his submission upon one single point, i.e. his contention that the starting point of 27 years is manifestly excessive.

6. We pause here to mention that the 2nd defendant, Chan Siu-leung, was dealt with by a different judge, Deputy Judge Gill, on 15 August 1997. The exhortations of this Court against that course, which is sometimes difficult to avoid, has no bearing upon this appeal. Chan was sentenced to 24 years after trial. The judge presumably took a starting point of 24 years and, there being no particular mitigating factors, imposed the sentence of 24 years.

7. Very properly Mr Macrae does not in this Court raise the ground of disparity. But he does submit that the starting point adopted by Deputy Judge Gill of 24 years reflected a proper assessment of the appropriate starting point. He pursues that submission by reference to four unreported decisions of this Court differently constituted. First, R v Yu Kwok-lung Crim App No 31 of 1995 in which upon a similar offence but a substantially larger quantity of narcotic, the Court considered that an appropriate starting point would have been 25 or 26 years imprisonment.

8. The second case he referred to was R v Szeto Tsz-kwong, Crim App No 798 of 1995, another case of trafficking, but one in which the quantity of salts of esters of morphine was 10,413.63 grammes. The trial judge took a starting point of 25 years imprisonment. The Court, while not expressly approving it, did not interfere with it, and reduced the total sentence, treating the appellant as being within the supergrass category.

9. The third case was that of the SAR v Tang Siu-man Crim App No. 360 of 1996. There the quantity of narcotic involved was 1,039.87 grammes of heroin hydrochloride besides a large number of diazepam tablets. The Court considered that the 28 years imprisonment imposed for manufacturing a dangerous drug, placed the sentence too high in the upper range of seriousness and reduced it to 25 years. Manufacturing, of course, attracts rather more severe sentences than trafficking.

10. The fourth case was R v Yip Kee-chun Crim App No. 91 of 1994. There the quantity of narcotic was very similar to that in this case, being a total of about 3,800 grammes of salts of esters of morphine in two counts, some 800 grammes or so in excess of the quantity here. The Court ultimately used the same starting point of 21 years as was adopted below in respect of the more serious of the two counts which was for some 3,700 grammes, while reducing the overall sentence.

11. We do not find it profitable to go into those cases in any greater detail. This Court has repeatedly stated that the particular circumstances of other cases and other sentences are not generally of assistance where they do not provide any guidelines or tariffs. The appropriate tariff or guidelines have been provided in Lau Tak-ming. For very large quantities, defined there as over 600 grammes, the Court left the starting point at over 20 years. Accordingly the courts have a large measure of discretion. It does not seem to us that it would be appropriate or, indeed, that it is possible to suggest any particular term of years as appropriate to quantities similar to those in this case. But looking at the particular facts of this case, we have no hesitation in concluding that the starting point was too high.

12. Mr Wesley Wong, for the SAR, has helpfully conceded that it does appear to be on the high side. We think that a more appropriate starting point would have been 24 years. In respect of that there is no reason why the applicant should not have received the full one-third discount which in fact the judge allowed him. Allowing a one-third discount would reduce the sentence imposed to 16 years.

13. We accordingly grant the application for leave to appeal out of time, treat the hearing of the application as the hearing of the appeal, allow the appeal, set aside the sentence below and impose instead a sentence of 16 years.