R. v. NG CHI KEUNG

IN THE COURT OF APPEAL

1996, No. 253
(Criminal)

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court) :

1. The applicant was found guilty upon his own plea of one offence of trafficking in dangerous drugs. He was sentenced to a term of imprisonment of four years and four months and now seeks leave to appeal against that sentence.

2. On the evening of the day in question, policemen in plainclothes were keeping watch in the vicinity of Tung Tau Tsuen Road in Wong Tai Sin. At about 23.05 hours they saw the applicant acting suspiciously. When he saw them he turned and ran. He was stopped and searched, upon which there was found on him a plastic bag containing a block and six plastic bags containing a substance. The block and the substance were subsequently found to contain a mixture of 226.01 grammes of which 26.94 consisted of heroin hydrochloride. There was also found on him $1,970 in cash and a bundle of keys. When these articles were found he said, in answer to a question, "Ah Sir, it's white powder." He asked for a chance. He took the police to premises to which they obtained entry with the keys found upon him. There they found a hammer and a set of scales which the applicant admitted he had used to assist a friend, Ah Fat, to break lumps of the drug into powder and to divide them into quantities.

3. The Judge below accepted that the applicant had been frank with the police and that he had saved Court time by his plea of guilty. He is a drug addict with a criminal record of 13 convictions starting in 1973 when he was 15 or 16 years old. That record includes five convictions for drug-related offences from 1986 to 1992 for which he was awarded treatment in a drug addiction centre, fines and a suspended prison sentence. This was his first conviction for trafficking. In these circumstances the Judge chose a starting point of six and a half years. She reduced this to four years and four months having regard to his co-operation with the police and the saving of Court time.

4. The applicant complains that his sentence was too heavy because, he alleges, it was heavier than those in similar cases. He points out that he co-operated with the police, admitted the offence and had no convictions of a similar nature. He claims that the starting point should have been one of six years and that with a discount of one third for his plea of guilty the sentence ought to have been one of four years.

5. The sentencing guidelines which have been laid down for trafficking in dangerous drugs are guidelines and nothing more. It is for the sentencing Judge to look to those guidelines and then to determine in the circumstances of any given case the starting point and thereafter to determine what if any discount should be given. In the circumstances of this case it cannot be said that the Judge was wrong to choose a starting point of six and a half years. The sentence was neither manifestly excessive nor wrong in principle and the application is therefore dismissed.