HKSAR v. WON YUK CHUN

CACC 641/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 641 OF 2002

(ON APPEAL FROM DCCC 391 OF 2001)

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J U D G M E N T

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This is an application for leave to appeal against sentence out of time.

2. On 27 June 2002, the applicant was convicted of a charge of trafficking in dangerous drugs on her own plea before Judge Whaley in the District Court. She was sentenced to 3 years' imprisonment. The quantity of drugs involved was 12.09 grammes of a mixture containing 9.98 grammes of heroin hydrochloride and 43 tablets containing a total of 0.6 grammes of midazolam.

3. In her affirmation in support of the application, the applicant said that after being sentenced by the court, she did not submit any application for appeal at the time. She recently noticed that the sentence of an offender in a similar court case imposed by the Court was more lenient than hers, even though the defendant in that case had previous convictions of trafficking in dangerous drugs while she had none. She therefore decided to apply for leave to appeal against sentence out of time. She also said that the sentence imposed on her was too severe.

4. The applicant had four previous convictions of possession of dangerous drugs, two in 1990, one in 1996 and the last in 1997. Following the guidelines on sentencing in R v Lau Tak-ming [1990] HKLR 370, the Judge adopted 5 years' imprisonment as the starting point. He gave a reduction of 1/3 for the applicant's frank admission to the police and her plea of guilty before him. From the resultant 40 months' imprisonment, the Judge also took into account personal difficulties regarding the health and unemployment of both the applicant and her husband and further reduced the sentence to 3 years.

5. According to Lau Tak-ming, for trafficking in heroin hydrochloride involving up to 10 grammes, the sentence should be 2 to 5 years. In my view, the Judge had properly adopted 5 years as the staring point in sentencing the applicant. He had also properly reduced the sentence by one-third from the starting point for the applicant's plea. After taking into account the personal circumstances of the applicant and her family, the resultant 3 years' imprisonment cannot in any sense be said as manifestly excessive or wrong in principle.

6. The applicant has told me that in another case, the defendant, with previous convictions of trafficking, was dealt with more leniently than her. She has not been able to supply me with any written record of that case, and I am not in a position to judge one way or another whether the present case is comparable with that one. Anyhow, in R v So Hung-lee & Anr [1986] HKLR 1049, at 1052F, dealing with different sentences passed on different accused for the same offences by different judges on different occasions, this Court said that

"the only consideration must be whether the sentence passed on the appellant was appropriate."

7. The Judge has explained the need for severe sentence passed on people involved in trafficking in dangerous drugs. He said:

"... It is because the small people like the defendant succumb to the temptation to get involved in selling these drugs that enables the trade to flourish. The courts therefore concluded that (sic) it necessary to pass these severe deterrent sentences in order to try to deter people from getting involved in this pernicious trade."

8. Most, if not all, people in the drug trade know that the courts in Hong Kong view trafficking in dangerous drugs very seriously, and that severe sentences as laid down in the guidelines on sentencing in Lau Tak-ming have always been applied. If those people do not know, they should know, so that they should know what they would be facing if they are caught. The applicant has frankly acknowledged that she knows the guidelines.

9. I do not see any possibility of the applicant succeeding in her intended appeal against sentence. In the circumstances, I must refuse leave.