HKSAR v. CHEUNG YUK-HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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JUDGMENT

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

1. On 22 August 1997 before Deputy Judge Lugar-Mawson in the Court of First Instance, the applicant, Chung Yuk-hung, pleaded guilty to an offence of trafficking in dangerous drugs, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).

2. The particulars were that one Chong Cho-kit and the applicant on 13 November 1996 at Flat G, 1st Floor, Chung Hing House, Yan Shun Lane, Kwun Tong, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 481.74 grammes of a mixture containing 96.25 grammes of heroin hydrocholoride, 41 milligrammes of dipipanone hydrochloride and 100 millilitres of opium water. He was sentenced to imprisonment for 6 years and 9 months after a very long submission made by counsel who represented him. He now seeks leave to appeal against that sentence.

3. In his written notice of application for leave, he makes complaints running to two pages of transcript, that two other persons, one apparently the landlord of the premises and another person called Chan played the major part in the trafficking and that nevertheless the police took no action against them. He complained also that although he and Chong Cho-kit pleaded guilty, his sentence was heavier than Chong Cho-kit's.

4. The former matter and his complaints about it to CAPO have nothing to do with his application to this Court for leave to appeal against sentence.

5. As to Chong Cho-kit's sentence, the applicant appears to have misunderstood the situation as only a part of that sentence was ordered to be served consecutively to a substantial sentence imposed earlier, the aggregate being rightly regarded as excessive. That situation simply does not arise in the applicant's case.

6. Further, the quantity of the narcotic to which he pleaded guilty of having unlawfully trafficked in was 96.25 grammes of heroin hydrochloride. On the well established tariff in R v Lau Tak-ming [1990]2 HKLR 370, this would have come within the category of 50-200 grammes which would have attracted a sentence of between 8 and 12 years. The starting point of 9 years adopted by the judge was therefore entirely in order. On the mathematical approach on which it was addressed, it would in fact have attracted a somewhat slightly higher starting point.

7. The judge then considered the discount for the applicant's plea of guilty. He very rightly pointed out that it was only after his voir dire and the admission in evidence of the applicant's statement that he had pleaded guilty. He therefore rightly concluded that he could not give the applicant the same full usual discount of one-third that was given to the 1st defendant Chong Cho-kit. He accordingly reduced the discount to 25% which was not ungenerous and which, again, he was entirely entitled to do. In that way, he reduced the sentence of 9 years to 6 years and 9 months. That sentence is plainly not manifestly excessive. There is no error of principle. We can see no grounds for interfering with that sentence. We accordingly refuse the applicant application for leave to appeal.