THE QUEEN v. LUK WING

IN SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 98 of 1985

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BETWEEN

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JUDGMENT

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1. The appellant pleaded not guilty to a charge of trafficking in dangerous drugs contrary to section 4(1)(a) of the Dangerous Drugs Ordinance. He pleaded not guilty but was found guilty after trial and sentenced to imprisonment for 3 years. He now appeals against sentence only.

2. Miss Ong who appears for the appellant on the hearing of the appeal submits that the sentence should be varied because the magistrate's approach in determining the length of the custodial sentence was wrong in principle.

3. The learned magistrate in his Statement of Findings said inter alia:-

"In determining the appropriate sentence for the Appellant on Charge (A), the Court took into account his age. However, the Court considered that the case of R. v. YIP Kai-wan Criminal Appeal No. 291 of 1984 was sharply distinguishable from the instant case. In YIP's case the defendant was 67, the Appellant was 58 and appeared to the Court to be a perfectly healthy 58-year-old. YIP was convicted of a section 7 offence, the Appellant was convicted of 'straight trafficking' - section 4. YIP had only one previous conviction for a section 7 offence, the Appellant had two. In all the circumstances the Court considered a substantial deterrent sentence was called for"

4. Miss Ong submitted that the learned magistrate appears to have relied upon the appellant's previous record for the purpose of fixing a sentence above the maximum of the tariff for this particular type of offence.

5. In The Queen v. Chiu Mo (Criminal Appeal No. 340 of 1984) Penlington, J. said:

"The magistrate said he started with a sentence of 9 months imprisonment. The magistrate has apparently increased that to one year because the appellant had a previous conviction. That is the wrong approach. What he should have done was to assess a sentence and then, if there was a clear record, he could have reduced it. It is however wrong to increase a sentence because of a previous conviction."

6. In Szeto Wan v. The Queen (Criminal Appeal No. 805 of 1983) Jones, J. said:-

"...... the appropriate tariff for offences of the present nature should be between 18 months and 2½ ,years' imprisonment."

Jones, J, was there particularly dealing with offences contrary to section 4(1)(a) of the Dangerous Drugs Ordinance. The sentence of imprisonment for 3 years was therefore beyond the maximum of the tariff range for this type of offences. The learned magistrate gave no reason other than the appellant's previous record for moving beyond the maximum of the tariff range. I therefore accept the submission of Miss Ong that the learned magistrate's approach was wrong in principle.

7. It is clear from the magistrate's reasons that he did think that the appellant's case was one which should be dealt with on the basis of a sentence at the top of the appropriate range. I therefore allow the appeal to the extent that the sentence will be varied to one of imprisonment for 2½ years.

8. Order: appeal allowed. Sentence quashed. In lieu thereof appellant sentenced to imprisonment for 2½ years.