HKSAR v. TSE SUN WONG

CACC 188/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 188 OF 2001

(ON APPEAL FROM HCCC 44 OF 2001)

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

This is an application for leave to appeal against sentence. On 18 May 2001, the defendant was convicted on his own plea and sentenced by Deputy High Court Judge Toh on a count of trafficking in a dangerous drug, namely, 1,114.75 grammes of a mixture containing 985.31 grammes of heroin hydrochloride. The Judge adopted a starting point of 25 years' imprisonment and reduced it by one-third because of the plea.

2. The only ground of appeal raised by the defendant, who appears in person, is that "according to similar cases, my sentence is too heavy".

3. The facts of the case are very simple. At 8:28 am on 13 October 2000, police officers of the Narcotics Bureau mounted an operation near Kowloon Tong Railway Station. They observed that the defendant was walking furtively along the pavement of Somerset Road, turning into Devon Road. When the defendant walked to a taxi parked at a meter space outside Devon Road, about to use a key to open the driver door of the taxi, the police officers went forward and conducted a search on him. Three slabs of heroin and three transparent plastic bags of heroin in powder form were found tucked under the defendant's waistband. These six items contained the quantity of heroin hydrochloride mentioned above.

4. When sentencing the defendant, the Judge said:

"The defendant is aged 48 and has a clear record. It has been said time and time again by the court that the background of a defendant involved in drug trafficking offences pales into insignificance when compared to the evil of the offence. The only way that the courts can help instead to stamp out this insidious trade, is to punish people who are caught carrying these drugs severely, so that it may act as a deterrent for other people who are tempted to engage in this sort of nefarious activity."

5. We agree with those observations. Then the Judge went on:

"Of course, in sentencing the defendant, I recognise that because he has a clear record, I will give him a lower starting point than I would have given for someone who has a bad record. The guidelines laid down in Lau Tak-ming recognises that for quantities of the heroin hydrochloride over 600 grammes, those found trafficking in them - of over 600 grammes - will be punished with sentences of 20 years or over.

In this case, taking all the circumstances into account, I consider that an appropriate starting point is 25 years' imprisonment. In giving the full one-third discount for the defendant's plea, the sentence is reduced to one of 16 years 8 months' imprisonment."

6. The issue, which we have to determine, is whether the starting point of 25 years adopted by the Judge is manifestly excessive for the narcotic content of 985.31 grammes of heroin hydrochloride. In the cases cited below, where the weight of heroin is mentioned, that refers to the weight of the narcotic content.

7. In his original skeleton submission for the respondent dated 10 September 2001, Mr Jackson Poon submitted that the defendant might have an arguable case. He referred to HKSAR v Chiu Ho Chung [2001] 1 HKLRD 697, where the Court of Appeal considered that the starting point of 30 years' imprisonment adopted by the trial judge for trafficking in over 4.9 kilogrammes of heroin was manifestly excessive. The court replaced it with a sentence based on a starting point of 25 years. It is instructive to note that the court made reference to what was stated by Nazareth V-P in HKSAR v Yau Po Hung (unreported, Crim App No 245 of 1998, [1999] HKLRD (Year Book) 295), as follows:

"For very large quantities defined in The Queen v Lau Tak Ming & Others as over 600 g, the Court left the starting point at over 20 years. Accordingly, the courts have a large measure of discretion...."

8. Another case was referred to by Mr Poon, being HKSAR v Leung Man Kei, CACC No 60 of 2001 (17 August 2001, unreported) where the defendant was convicted for unlawfully trafficking in dangerous drugs, namely, 1,993.08 grammes of a mixture containing 915.88 grammes of heroin hydrochloride and other items of less serious drugs. The Court of Appeal replaced the 25 years starting point adopted by the judge with one of 22 years. Based on the above two authorities, Mr Poon submitted that the defendant might have an arguable case.

9. However, in his skeleton submission for the respondent dated 20 November 2001, which is the current skeleton submission for the respondent before the court, Mr Poon has changed his mind to say that while the sentence in the instant case is on the high side, it is not manifestly excessive. He refers to the case of R v Ho Chi-ming [1995] 2 HKCLR 29 and HKSAR v Leang Sze-keong, Crim App No. 566 of 1997 (24 February 1998, unreported). In the former case which involved trafficking in 1.213 kg of salts of esters of morphine, and in the latter case which involved 889.6 grammes of heroin hydrochloride, a similar starting point of 25 years adopted by the trial judges was approved by the Court of Appeal. These cases were referred to by Mr Poon to show that the starting point of 25 years adopted by the Judge in the instant case is not manifestly excessive. However it is to be noted that in both Ho Chi-ming and Leang Sze-keong, a foreign element of trafficking in dangerous drugs was involved. In Ho Chi-ming, at p 30, lines 23 to 26, Litton VP (as he then was) observed:

"The applicant was about to board a flight to Taiwan when he was apprehended. The heroin was packed in condoms in 17 packages tightly wrapped around his back and abdomen by adhesive tapes. He had been offered $40,000 to bring the heroin to Taiwan. He was then aged 23 years."

In Leang Sze-keong, Rogers JA (as he then was) said:

"The drug was found strapped to the Appellant's body. He had been on a flight which had come from Bangkok and he was proposing to travel on to Vancouver where he would deliver those drugs. This was therefore a case of a large quantity of drugs. The offence concerned an international trafficking in those drugs."

10. We have also looked at the following decisions of this court, differently constituted each time, in our consideration whether the starting point of 25 years adopted by the Judge for the 985.31 grammes of heroin is appropriate:

(a) HKSAR v Lee Kwok Keung CACC 5/1999 (14 December 1999, unreported), for about 1.8 kilogrammes, the court said that a starting point of 25 years was within the proper range;

(b) HKSAR v Fan Bing Hung CACC 91/2001 (20 June 2001, unreported), for about 1.7 kilogrammes, the court considered that a 25-year starting point was at the top end but it was not manifestly excessive; and

(c) HKSAR v Wong To CACC 508/2000 (7 August 2001, unreported), for 1,285.83 grammes with a manufacturing element, the court took the view that an appropriate starting point would be in the region of 25 years.

11. In the instant case, there is no evidence that any foreign or manufacturing element was involved. The defendant said in a video-recorded interview that he had been requested by an acquaintance to collect the drugs that were found on him in a rubbish bin in the railway station for a reward of $700. This information is contained in the summary of facts prepared by the prosecution which was admitted by the defendant when he pleaded guilty. The defendant had a clear record, which should be distinguished from the case of a hardened drug trafficker. In the circumstances, we are of the view that the starting point of 25 years is manifestly excessive, and one of 22 years should have been appropriate.

12. We therefore grant leave to appeal, and treating the application as the appeal proper, we set aside the sentence of 16 years 8 months and substitute for it a sentence of 14 years 8 months, a term that has given effect to a full one-third discount for the guilty plea. To this extent, the appeal succeeds.