HKSAR v. LUEN KIU SANG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 202
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was originally charged with trafficking in 197.05 grammes of a mixture containing 31.73 grammes of heroin hydrochloride. After a trial before Deputy Judge Yuen he was convicted of being in possession of these dangerous drugs. He was sentenced to 3 years 4 months' imprisonment and now seeks leave to appeal against this sentence.

2. In passing sentence the Judge had this to say:

"For the amount of drug that you had in possession, some 197.05 grammes of a mixture containing 31.73 grammes of heroin hydrochloride, if there was any evidence of trafficking, i.e. coming within the definition of possession for trafficking, I should really adopt a sentence in a range of 6 1/2 years. But as I have said, I now convict you of simple possession I do not adopt that tariff. Instead, I will adopt a starting point of 5 years though I found you guilty after trial, but I did no convict you of trafficking.

Having heard your counsel's mitigation and having considered all your background reports, including your DATC report and you antecedent history, I am prepared to give you a one-third reduction."

3. To say the least of it this was a rather unconventional approach to sentencing for possession of dangerous drugs.

4. Needless to say possession of dangerous drugs is an entirely different offence to trafficking in the substance. It is a much less serious offence.

5. Normally a sentence in the range of 3 years' imprisonment is appropriate for possession of a significant quantity of heroin. However where a substantial quantity of dangerous drugs is involved such as in the present case it is also necessary to take cognizance of what has been described as the latent risk factor. That is the risk that some or all of the dangerous drugs may find its way into the hands of third parties. This would have justified a sentence in the present case of somewhere in the region of 3 1/2 years' imprisonment.

6. The Judge adopted a starting point of 5 years and then gave a one-third discount notwithstanding the fact that the Applicant had not pleaded guilty. Certainly the discount was not justified for the reasons given by the Judge.

7. However as chance would have it the sentence finally arrived at was not too dissimilar to the sentence which should have been imposed had the correct principles been adopted. This application is dismissed.