HKSAR v. CHI PAK KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1995, No.743
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Stuart-Moore, J.A. (giving the judgment of the Court):

1. This matter comes before us as an application to treat an earlier abandonment of an application for leave to appeal against sentence as a nullity. For the rather unusual reasons, which we shall come to, and despite the fact that this is a very late application indeed, we can indicate straightaway that we are prepared to treat this hearing as the hearing of an application for leave to appeal against sentence.

2. On 30th August 1995, this Applicant pleaded guilty in the Magistrates' Court at San Po Kong to a charge of trafficking in methamphetamine hydrochloride (ice). On 26th October 1995, the Applicant confirmed his plea in the High Court before Seagroatt J. who passed a sentence of 14 years' imprisonment for the offence which involved a crystalline solid containing a narcotic content of almost 3 kgs.

3. The Applicant (D2 at trial) was jointly charged with Chan Kwok-hung (D1). D1 was separately tried as he pleaded not guilty to the offence. In due course, he was convicted following a trial before Keith J., and was sentenced to 14 years' imprisonment on 19th January 1996. That sentence was the subject of an application which was dealt with in Criminal Appeal No.67/96 on 18th July 1996. The facts of the case appear clearly from the judgment. In summary, D1 and D2 were stopped on 1st June 1995 by Customs Officers in the departure hall of Kai Tak Airport. Following a search, a number of polythene packets containing this large quantity of ice were found strapped to their bodies. D2, having pleaded guilty, gave evidence in the trial of D1 in support of the defence case that D1 was unaware that he was carrying dangerous drugs. D1's involvement, according to D2, was that he believed he was engaged in smuggling "pearl powder" to the Philippines which D1 had understood to be a traditional Chinese herbal medicine.

4. Following conviction, the trial judge in the case of D1 came to the conclusion that the prime mover in the offence was the Applicant before the court today. Let it be said immediately that that has no bearing whatsoever in our decision regarding this Applicant. However, it was relevant to Keith J.'s approach to D1 because the starting point for the sentence in D1's case was taken to be 16 years' imprisonment. This court, in the course of its judgment in 67/96, has already criticized that starting point. It was quite clearly not in accordance with the guideline case for this kind of offence which is Attorney General v Ching Kwok-hung, Application for Review 1990, No.15, (1991) 2 H.K.L.R. 125.

5. There were, however, other factors which had come into play when the case came before this court in July 1996 which emerge from the judgment. The result was that D1's sentence was reduced by a further year leaving D1 with a shorter sentence than the Applicant before us today, even though this Applicant had pleaded guilty and D1 had contested the charge.

6. The question for this court is whether the sentence imposed upon this Applicant was correct in principle or can be shown in any way to have exceeded the proper limits. The whole difficulty in this case has arisen because the prosecution allowed its case to be split with the result that two separate judges dealt with different aspects of the case. That should not have occurred. There is no need to say more about it as the judgment in Criminal Appeal 67/96 deals fully with that aspect.

7. In the course of sentencing, Seagroatt J. said to D2:

"I have to accept as I do that this was your first venture into trafficking in drugs, and that your part in it was as the courier between Hong Kong and the Philippines, and that you recruited another courier to carry the drugs with you, each carrying approximately half the quantity.

All drugs are a great threat to society. Ice is becoming more common. I have to bear in mind that you were not at the heart of the distribution, nor involved in manufacture, but acted as a courier although an important one. And those factors are important in determining where you fit into the scale of sentence. Had this been a trial as a result of which you were being convicted, the sentence would have been one of 21 years. In view of your plea of guilty and frankness and such other matters as is proper for me to take into account, I am reducing that sentence on your plea of guilty to one of 14 years."

8. As we have already said, the Ching Kwok-hung case demonstrates that that sentence was entirely appropriate and cannot be criticized. The fact is that D1 was the beneficiary of good fortune caused by an error on the part of the judge in his case. His good fortune has no bearing whatever upon this Applicant. He was, as Seagroatt J. said, the leading force in this enterprise, and we can find no reason for interfering with the sentence that he imposed.

9. Accordingly, this application must be dismissed.