HKSAR v. NG CHI MING

CACC 570/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 570 OF 2001

(ON APPEAL FROM HCCC 310 OF 2000)

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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 18 December 2000, the Applicant, Ng Chi Ming, was convicted by Deputy Judge Esther Toh in the Court of First Instance, on his own pleas of guilty, of two counts of trafficking in a dangerous drug. These were the 1st count on the indictment, which related to 5,745.67 grammes of heroin and the 3rd count, which related to 275.16 grammes of heroin. The judge acceded to the prosecution's application to have the second count, that of manufacture of dangerous drug, left on the court file, marked not to be proceeded with without the leave of the court. Sentence was reserved as the Applicant had indicated his willingness to give evidence against his co-accused, a man called Chung Shun Keung, who was the 1st named Defendant on the indictment. As matters turned out, Chung pleaded guilty to the 3rd count on the indictment on 23 November 2001. He is currently awaiting sentence.

2. On 27 November 2001, the judge sentenced the Applicant to 13 years' and 4 months' imprisonment in respect of the 1st count and 7 years' imprisonment in respect of the 3rd count. She ordered that both sentences be served concurrently with each other. She, however, ordered that the total sentence be served consecutively to a sentence of 3 years' imprisonment that the Applicant was already serving. This sentence had been imposed on him in the District Court on 16 May 2000 in respect of his convictions for blackmail and claiming to be a member of a triad society.

3. In her sentencing remarks the judge said that she took an overall starting point sentence of 26 years' imprisonment for both offences. She reduced this by one-third to reflect the Applicant's guilty pleas and by a further 4 years to reflect his offer to testify against his co-accused.

4. The Applicant filed a notice of application for leave to appeal against his sentences on 21 December 2001. Today he appears in person, legal aid having been refused on 22 January 2001. In his notice of application for leave to appeal he says that his sentences were 'too heavy'.

5. Before us this morning he says it was his 'impression' that the sentences the Judge imposed on him in this case would run at least partly consecutively to those imposed on him in the District Court. He also says that, given his offer to testify against the co-accused, he expected a 50% discount in sentence.

Facts

6. The facts that the Applicant admitted to may be shortly stated. Soon after 7 pm. on 29 January 2002, police officers observed the Applicant leaving a building in Fanling; he was then holding a paper bag. He was kept under surveillance. He boarded a KCR train at Fanling Station and alighted at Shatin Station. Chung Shun Keung, the 1st Defendant on the indictment, was already there waiting for the Applicant. Chung was holding a plastic bag and the two men exchanged bags. They parted company on the station concourse. They were then intercepted by the police and arrested after a struggle.

7. The paper bag originally carried by the Applicant was searched, inside were 11 plastic bags containing 2,210 plastic straw packets and 14 plastic bags of heroin mixture. $330,000 was found in the plastic bag that Chung originally carried.

8. Two days later, on 31 January 2000, the police searched the Applicant's flat in Fanling. Inside it they found, among other things, a large quantity of heroin, together with various equipment bearing traces of heroin. Under questioning about this, after caution, the Applicant said: 'Ah Sir, I did it by myself. It has nothing to do with my family.'

9. The Government Chemist's examination of the contents of the paper bag showed them to be a mixture weighing 885.61 grammes, containing 275.16 grammes of heroin hydrochloride. The dangerous drugs found inside the Applicant's flat, were shown to be a mixture weighing 8,559.75 grammes, containing 5,745.67 grammes of heroin hydrochloride. The 'street' retail value of the entire quantity of heroin seized - which had a total weight of 6,020.83 grammes of narcotic content - was estimated to be $5,702,219.

Decision

10. As we have said, the total weight of the heroin that the Applicant trafficked in just exceeded 6 kilogrammes. This far exceeded the upper tariff band of 600 grammes identified by this Court in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 as attracting a sentence of 20 years' imprisonment, after trial. It is now well established that when sentencing offenders for trafficking in dangerous drugs having a narcotic content in excess of 600 grammes the sentencing judge has to impose his sentence after considering the particular facts of each case. See by way of illustration: HKSAR v Yau Po Hung CACC 245 of 1998 (unreported) and HKSAR v Chiu Ho Chung [2001] 1 HKLRD 697.

11. Given the very great weight of the narcotic content of the heroin involved in this case, the starting point of 26 years' imprisonment adopted by the judge is not open to criticism.

12. The judge said this in her reasons for sentence, in relation to the Applicant's offer to give evidence against his co-accused:

"The biggest mitigation that can be said on behalf of the defendant is that he did plead guilty and did offer assistance to the police. He not only offered assistance, as counsel said, he had made two statements; he was taken to court ready to give evidence against the other defendant in this case. There is no doubt that because of his co-operation that that caused the other defendant to change his mind at the eleventh hour and plead guilty."

13. We have seen the two statements that the judge referred to. They are principally confined to the Applicant's relationship and drug trafficking activities conducted in company with Chung, his co-accused, and the events surrounding the matters on 29 January 2000 which resulted in the arrest of Chung and the Applicant. No third party is explicitly implicated in either statement.

14. The Applicant's offer to give evidence against his co-accused remained an executory promise, which he was not called upon to perform. Though, in fairness to him, we acknowledge that this was because of reasons beyond his control. We have no doubt that the possibility he would testify against his co-accused was one of the reasons which caused that man to plead guilty upon his arraignment. Given the limited degree and quality of his assistance to the authorities the Applicant, in our view, received a very generous discount of a further four years imprisonment in addition to the full one-third discount given to reflect his pleas of guilty.

15. The judge was perfectly correct to order that the Applicant's sentences run consecutively to the term of three years' imprisonment he was already serving. Those sentences were passed in respect of serious offences which were wholly unconnected with the offences for which he fell to be sentenced in the present application. We note that those offences were committed as long ago in 1991, but only fell to be tried in May of 2000. Obviously, the Applicant committed the offences in this present application whilst he was at large for his offences of blackmail and claiming to be a member of a triad society. We also note that the Applicant has an extensive criminal record. This includes two previous convictions for drug trafficking, for which he received custodial sentences.

16. We are satisfied that the sentences imposed on the Applicant are neither manifestly excessive nor wrong in principle, accordingly his application for leave to appeal those sentences is dismissed.