HKSAR v. LOK SHIU LAM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 485
(Criminal)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. On 1 September 1998 the applicant, Lok Shiu-lam, after trial before His Honour Judge Sweeney in the District Court, was convicted of one count of trafficking in dangerous drugs contrary to ss.4(1)(a) and 3 of the Dangerous Drugs Ordinance (Cap. 134).

2. The particulars of the offence were that on or about 11 May 1998, on the pavement outside No. 365 Portland Street in Mongkok, he unlawfully trafficked in a dangerous drug, namely 28.93 grammes of a mixture containing 24.91 grammes of heroin hydrochloride. He was sentenced to imprisonment for six years. He now seeks the leave of this Court to appeal against that sentence.

3. Turning to the facts, they are these. While two customs officers were patrolling in Mongkok on the day in question, the applicant attracted their suspicion. At first they did not find anything but on searching him more closely they found on one side of his underpants a plastic bag containing what they suspected to be dangerous drugs, and on the other side four other plastic bags containing a total of 78 small packets of suspected drugs. Expert evidence subsequently established that these contained the drugs particularised in the charge.

4. It has also to be mentioned that amongst the articles that were taken from him, were an amount of $3,770 and a portable phone.

5. In sentencing him, the judge said this:

"He [the applicant] has many previous convictions, including one for drug trafficking, and many others for selling pornography. Clearly, this is the man who funds his own drug addiction with a mixture of public money, pornography and drug trafficking. There is not much to be said in favour of such a person and Mr Fung [the appellant's legal representative below] has not attempted to do so.

Based on the tariffs laid down in the case of Lau Tak-ming [1990]2 HKLR, I take 6 years as a starting point for this office. In the circumstances of conviction after trial and no clear record, there will be no discounts."

6. In his home-made application for leave to appeal, the applicant included a written note to the Registrar to the following effect:

"1. The honourable judge did not believe my defence case. It was my daughter in Wei Zhou who told my friend, Tang Ming Kwok, to buy me that portable phone which was especially for phoning me every month to know how I was. This is because I have liver disease and lung infection. So I was phoned monthly. Moreover, I have a large family in Wei Zhou, but I have no relative in Hong Kong. Therefore my relatives in Wei Zhou every month give me ten thousand dollars for living expenses and medical consultation.

2. The lawyer misled me that I would be acquitted in this case.

3. Some friends of mine pulled money for me to buy the white powder for everyone's consumption.

4. The honourable judge was prejudiced, who only believed the police and did not believe me.

The reasons for request of sentence reduction are as follows:

1. my old age;

2. of my poor health. This is because I have cirrhosis, lung infection and asthma. I hope the court would sympathise and reduce my sentence."

7. Before us today, he has repeated some of these matters. He adds that his mother is over 80 years old in China. His daughter is 15 and has to work at that age. He says he was originally told that heroin can cure his asthma and liver disease and so he became addicted. He recognises he is now being punished and regrets the matter very much and is remorseful. He asks for the sentence to be reduced so that he can turn over a new leaf and take care of his mother, wife and child.

8. We have to say first of all that the judge was entirely right upon the guidelines in the case of Lau Tak-ming in taking a starting point of six years. The amount of narcotic of 24.91 grammes falls squarely in the second category which attracts sentences of 5-8 years. As to what the applicant has advanced to us, both in his written letter and orally before us today, it discloses no reasons at all for any reduction of sentence. The two items he has specifically identified, his old age and his poor health, do not in any way warrant an interference with the judge's conclusion or any reduction from the starting point. Plainly there is no merit in his application which we will dismiss. At the same time, having regard to the total lack of merit or grounds, we would order that two months be disallowed from his sentence. This means he will serve two months longer.