R. v. WONG CHI MING and Another

IN THE COURT OF APPEAL

1994, No. 505
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The applicants pleaded guilty before Her Honour Judge Bokhary sitting as a deputy judge in the High Court to two counts of trafficking in a dangerous drug, namely 371.42 and 862.17 grammes of salts of esters of morphine respectively. The first applicant was sentenced to concurrent terms of 12 years' imprisonment and the second applicant was sentenced to concurrent terms of 18 years' imprisonment. They both apply for leave to appeal against their sentences, the second applicant having abandoned his application for leave to appeal against conviction.

2. The agreed facts were that, at about 12.28pm on 13 July 1993, a team of officers from the Narcotics Bureau who were conducting a surveillance operation saw both applicants arrive at the door of a flat in Tak Po Gardens. After the first applicant had used keys to open the iron grille and the wooden door to the flat, both applicants entered and closed the door and iron grille behind them. At about 2.40pm the officers saw the applicants leave the flat and walk towards the lift lobby. The first applicant was carrying a blue bag on one shoulder and a paper carrier-bag in his other hand. After they had arrived at the podium of the building, the first applicant walked to a carpark on the 2/F, while the second applicant went to Choi Wan Road where he was apprehended and brought back to the flat. Meanwhile other officers intercepted the first applicant as he was about to board a car in the carpark. The two bags that he was carrying were found to contain blocks of heroin, wrapped in gift paper. He admitted that the drugs were one and a half units of heroin and that he was trafficking in them because he owed more than $100,000 to a loan-shark.

3. On searching the flat the police found in the sitting room six blocks of heroin wrapped in gift paper similar to that with which the heroin carried by the first applicant was wrapped. Two small quantities of heroin were also found in plastic containers. In the sitting-room, the bedroom and the kitchen was a large quantity of chemicals and paraphernalia associated with the manufacturing of dangerous drugs. Many items of paraphernalia were contaminated with heroin. Documents were found which established that the first applicant was the tenant of the flat. Other documents contained formulae which prescribed the quantities of additives to be used in the manufacture of heroin.

4. The first applicant told the police that, on the instruction of his boss, the heroin had been brought to the flat for processing and that he, the applicant, was about to deliver some of it to Broadcast Drive when he was arrested.

5. Fingerprints of the second applicant were found on adhesive tape attached to one of the three blocks of heroin that the first applicant had been carrying as well as on adhesive tape on one of the six blocks of heroin found in the flat.

6. The first applicant had pleaded guilty at the very outset and he had offered to testify for the prosecution against the second applicant. He gave a very detailed statement to the police of his involvement with the second applicant. It was as a result of his indication that he would testify against the second applicant, that the second applicant eventually pleaded guilty before the prosecution opened its case to the jury.

7. In passing sentence the judge took 14½ years' imprisonment as a starting point for sentence on the first count and 22 years' imprisonment for that on the second count. However, since the first applicant had pleaded guilty at the earliest opportunity and had undertaken to testify against the second applicant, the judge gave him a 50% discount in sentence, and because the second applicant eventually pleaded guilty when faced with the damming testimony that the first applicant was about to give as to his involvement in the offences, the judge granted him a 25% discount. Taking into account the fact of the second applicant was already serving a sentence of 15 years' imprisonment imposed on him a month earlier for robbery, the judge ordered that the overall sentence of 18 years for the drugs offences commence five years from the date on which that sentence was passed. This resulted in the second applicant being subjected to a total sentence of 23 years for the two drugs offences and the robbery.

8. The first applicant complains that his overall sentence of 12 years' imprisonment is too heavy and expresses the hope that he can be given an earlier release so that he can care for his mother and children.

9. The second applicant also expresses remorse and says that he has aged parents to care for. He therefore asks for a reduction in sentence.

10. It is perfectly clear that the sentences passed by the judge were in conformity with the guidelines laid down by this court. She gave proper recognition to all relevant mitigating factors in respect of both applicants. We would not be justified in interfering with these sentences. The applications for leave to appeal against sentences are therefore refused.