R. v. SUNG CHIN KEONG

IN THE COURT OF APPEAL

1996, No.269
(Criminal)

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J U D G M E N T

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Power, Ag. C.J.(giving the judgment of the Court):

1. The applicant faced two counts of trafficking in dangerous drugs. In the first it was charged that on 27th November 1995 at a pavement outside No.20 Gillies Avenue South, Hung Hom, he trafficked in 13.12 grammes of a mixture containing 1.73 grammes of heroin hydrochloride. In the second it was charged that on the same day inside cubicle C on the mezzanine floor of 20 Gillies Avenue South, he unlawfully trafficked in 462 grammes of a mixture containing 77.48 grammes of heroin hydrochloride.

2. The facts are all too familiar. He was seen by a group of police conducting surveillance to walk up a staircase at No.20 Gillies Avenue and to open the iron grille of premises on the mezzanine floor. Shortly afterwards he came out and was then intercepted on the pavement outside No.20. He was searched and the drugs, the subject of the first count, were discovered on his person. He was then taken back to the premises and the drugs, the subject of the second count, were found inside a nylon bag.

3. He pleaded to both counts before Yeung, J. and was sentenced to one year on the first and 6½ years on the second and the sentences were ordered to be concurrent.

4. He now seeks leave to appeal against that sentence saying it is too severe because he did his best to co-operate with the Customs and Excise Department after arrest and, according to him, risked his life by offering that co-operation. However that may be, the co-operation led to nothing and it is the policy of this court not to give any credit for suggested co-operation which proves to be fruitless. He also points to the fact that he pleaded guilty but this was taken into account by the trial judge. He submits that the tariffs which apply to dangerous drugs offences would, given the quantity involved, throw up a starting point of nine years rather than the ten years which, it seems, the trial judge must have taken. The trial judge said when sentencing:

"You have pleaded guilty two serious charges of trafficking in a dangerous drug. Time and again this court has emphasised that anyone who is convicted of offences of this nature cannot expect mercy from the court, irrespective of the circumstances in which the offences were committed. For the past 20 years you have committed no less than 20 offences, most of which are drug related. The other offences appears to be petty crimes and petty theft. The only real mitigation, as your counsel quite rightly pointed out, is your pleading guilty at an - a fairly early stage. The total quantity of drugs involved in these two charges was about 80 grammes. In my view the proper starting point for this quantity is about 8 to 9 to 10 years' imprisonment, but having consideration of the matters pointed out by your counsel, in particular your pleading guilty to the charge - charges at an early stage I consider the - the following sentences appropriate.

For the 1st charge of Trafficking in a dangerous drug involving a small quantity you are sentenced to one year's - one year imprisonment. In respect of the 2nd charge you are sentenced to six-and-a half years imprisonment. I order the sentences to run concurrently with one another." (Emphasis supplied.)

5. The imprecision when referring to the starting point was unsatisfactory but it does seem clear in the outcome that the starting point taken by the judge must have been ten years. It would have been more satisfactory if this had been stated in terms. As I have already indicated it is the argument of the applicant that, given the quantity, nine years should have been the proper starting point. This court must, of course, look at the reasoning of the trial judge but it must also look, whatever his reasoning, to see whether at the end of the day the sentence imposed was a proper one. The applicant referred to the decision in R. v. Ko Wing-shing Criminal Appeal No. 720 of 1995, in which an offender charged with two counts of trafficking had possession of dangerous drugs with a narcotic content of 79.65 grammes and was sentenced to imprisonment for five years. The applicant argues that as the narcotic content in his case was 79.21 grammes it was wrong to impose a sentence of 6½ years. When examining the sentence we think it proper to bear in mind, although the trial judge does not appear to have given any weight to this aspect of the matter, that overall the applicant had a substantial cache of narcotic mixture, 475.12 grammes, which is considerably more than the 351.06 grammes which the offender possessed in R. v. Ko Wing-shing. It is true that the guidelines have reference to the narcotic content but a court is not required to close its eyes, when sentencing, to the amount of the mixture which an offender intended to disseminate. We are satisfied that in all the circumstances the sentence of 6½ years, while at the upper end of the proper range, was not manifestly excessive and is therefore not one with which we could properly interfere. The application must be refused.