THE QUEEN v. CHEUNG WAI YUEN

Headnote

Sentence after plea on charge of possession of dangerous drugs for the purpose of unlawful trafficking - 11 years held to be a proper starting point where offence involve 1770 grammes of a mixture containing 102 grammes of salts of esters of morphine in circumstances which indicate that the room in which the drugs had been stored was being used as a packing station. The court again stated that HAN Man-fai (1989) 1 HKLR 290 does not lay down any mathematical formula for discount after assistance to police and plea and that when a defendant is caught red-handed. The judge is entitled to give a discount substantially less than the figure of 25%.

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JUDGMENT

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Power, J.A.:

1. The applicant in this matter pleaded guilty to two counts of possession of dangerous drugs for the purpose of unlawful trafficking. The particulars in the first count were that on 18th April 1989 outside flat B4, 2nd floor, Paterson Building, Paterson Street, Hong Kong, he had in his possession a dangerous drug, namely 21.64 grammes of a mixture containing 1.17 grammes of salts of esters of morphine for the purpose of unlawful trafficking. The second count related to inside the same address charging that he possessed therein 1,753.63 grammes of a mixture containing 101.20 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

2. The facts revealed that the applicant had been apprehended as a result of a surveillance. Also found in his flat were drug packaging materials and two scale balances.

3. Mr. Hoosen, who appeared for the applicant below, said in mitigation that he had borrowed money and become involved with loan sharks. He rightly stressed however that the pleas of guilty were the principal mitigating factors. He also said that the applicant bad been cooperative with Narcotics Bureau officers.

                        The trial judge when sentencing said:

        "well, these two counts in which he is convicted are really the one matter, so the sentences are properly concurrent.

        As regards the level of sentence, well, it doesn't take any imagination to realise the damage that could be done by 1.7 kilos of heroin going onto the streets. The starting point for sentence would be around about 11 years. And in the light of the various matters that Mr. Hoosen has mentioned, I think the proper sentence is 9 years' imprisonment. The 3rd Count - 3 years' imprisonment, the 4th Court - 9 years' imprisonment, concurrent."

                        The grounds, which have been urged today by Mr. Lee Wing-king, who appears for the applicant, are, firstly, that the starting point of 11 years as adopted by the trial judge was too high. We agree with his proposition that the sentences must be looked at in the light of sentencing policy at the time and that sentencing policy at the time is correctly set out in CHENG Yeung (1989) 2 HKLR 258. He has, having canvassed cases and suggested sentences referred to therein, submitted to the court that a proper starting point would have been 10 years.

                        When considering these sentences we must take into account not only the amount of dangerous drugs that was involved but also the circumstances of the offence. As I have already said the facts indicated that his room was being used as a packing station. Given those circumstances, we are quite unable to say that the trial judge was wrong in taking 11 years as a starting point. There is, therefore, nothing in our view in the first ground of appeal.

                        The second ground of appeal suggests that the discount given for the plea of guilty, assistance to the police and other mitigating factors was inadequate. The two matters that have been particularly argued in this regard are the assistance to the police and the pleas of guilty. It suggested that he was entitled to a substantial discount because of the information which he gave to police officers who came to interview him on three occasions. This information was, however, of no use. It did not lead to any seizures, it did not lead to any arrest and was, according to what the Crown has said, information already known to the police. we are satisfied that if the trial judge did give any discount in this regard, and, given the statement which I have just read, it seems that he may have, the applicant was very fortunate indeed. None in our view was merited.

                        The second matter in this regard to which Mr. Lee makes reference is the case of HAN Man-fai (1989) 1 HKLR 290. Mr. Lee suggests that this indicates that 25% is an appropriate discount where there has been some assistance and, in particular, where there has been a plea of guilty. What was said in that case by Cons V.-P., was:

"We do not wish to be drawn into any mathematical discussion. We would only say that judges do appear to us to give discounts depending of course upon the circumstances of the individual case, which are generally in the region of 25%."

The words themselves make it plain that the court was not laying down there any mathematical formula for discounts. Each must depend upon the circumstances of the individual case. Where a defendant is caught red-handed and pleads guilty, a judge when sentencing is entitled to give a discount substantially less than that figure of 25%. In this case the discount given was one of two years, from 11 years to 9 years. This in our view was a perfectly proper and, indeed, not ungenerous discount in the circumstances. There is, therefore, nothing in the second ground of appeal and the application for leave to appeal is therefore dismissed.