HKSAR v. WONG WAI YIP

CACC 159/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 159 OF 2001

(ON APPEAL FROM HCCC 33 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 4 April 2001, the Applicant, aged 32, pleaded guilty before Deputy Judge Barnes in the Court of First Instance to two charges of trafficking in heroin hydrochloride. He was sentenced to a total of seven years and eight months' imprisonment against which he now seeks leave to appeal.

2. The quantities of heroin involved in the first and second counts amounted approximately to 119 grammes (count 1) and 48 grammes (count 2) in the respective mixtures. This total of 167 grammes had a street value of about $134,000. The judge took eleven and a half years' imprisonment as an appropriate starting point for such a quantity which, when reduced by a third to take into account the Applicant's pleas, came to seven years and eight months. Accordingly, the judge imposed six years and eight months on count 1 and five years on count 2, ordering that only one year of the sentence on the second count should run consecutively to the first.

3. The sentence fell within the guidelines in R v Lau Tak-ming & Ors [1990] 2 HKLR 370, which, for heroin with a narcotic weight of between 50 and 200 grammes, suggest a tariff should be taken of between 8 and 12 years' imprisonment. In addition, in the present case, it is to be noted that the Applicant had only just completed a nine-year sentence for trafficking in dangerous drugs when he committed the present offence. Even before that, he had acquired five other convictions for a variety of offences.

4. The Applicant's homemade grounds of appeal are based to a large extent on the outcome of the appeal in HKSAR v Jim Lung-keung CACC501/2000. In that case, separate starting points were taken by the sentencing judge for two amounts of heroin which had been found in closely related circumstances. The ultimate sentences on each charge were reduced by a third to take into account the pleas and then made to run consecutively. This disclosed an error of principle because the sentence of seven years and eight months in that case achieved a totality which was artificially high. The whole amount of narcotics in Jim Lung-keung's case, when added together, weighed 87.37 grammes which would normally have produced a sentence of about nine years after trial. In view of the pleas, this court reduced the sentence on appeal to a total of six years' imprisonment.

5. The Applicant in the present case is more than usually aware, with his record, of the tariffs for sentence in heroin trafficking cases. He is also aware because he has made it plain to us today that not only has he read Jim Lung-keung's case but that he understands that he was trafficking in nearly twice as much heroin as Jim Lung-keung who he described in his letter dated 7 November 2001 as his "fellow inmate".

6. The judge in the present case had taken meticulous care to achieve a just result. In particular, as the Applicant well knows, the judge combined the two amounts of heroin to see what the end result should be in terms of a proper overall sentence. The resulting sentence imposed by the judge was one which the Applicant should properly have received if both of the quantities of heroin in his case had been in one single count. There was, in other words, nothing artificial about the result in this case.

7. The application is without merit and it is dismissed.

8. The Applicant was warned of the consequences of pursuing an application if it lacked merit by Wong JA on the last occasion he came before the court for a mention hearing. In these circumstances, we shall order that three months of the time which the Applicant has spent in custody awaiting this hearing shall not count towards his sentence.