THE QUEEN v. WU SHING YEE

1990 No. 27

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

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BETWEEN

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JUDGMENT

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        (The judgment of the court was delivered by Barnes, J.)

1. The Applicant pleaded guilty to two counts alleging possession of dangerous drugs for the purpose of unlawful trafficking contrary to section 7 of the Dangerous Drugs Ordinance.

2. Both offences were committed on the 29th June 1989. The first count involved 1,416.96 grammes of a mixture containing 82.43 grammes of salts of esters of morphine which he was carrying in a plastic shopping bag in the street after having emerged from a building at 73, Hong King Road. The second count involved 5,506.27 grammes of a mixture containing 328.07 grammes of salts of esters of morphine, found by the police officers at a flat on the 3rd floor of 73, Hong Ning Road after the Applicant's arrest in respect of the 1st quantity.

3. The facts with which he agreed were that he was accosted in the street by the police officers and on learning their identities he immediately dropped the bag and began to run away. He was immediately caught but he put up a "fierce struggle" before finally being overpowered by four officers. When some Keys were found on his person he would not reveal the address of the premises to which they gave access. The officers were, however, able to find the flat by working their way through the building from which they had seen him emerge and testing the keys on the doors of each flat they encountered. Eventually they were able to open a flat on the 3rd floor. When they did, the Applicant then told them which room he occupied and revealed that he had about 12 pounds of drugs in the room. The drugs mentioned in the second count were then found.

4. When he was cautioned after his arrest in the street he remained silent. But after the caution which followed the finding of the drugs in the room he said: "Give me a chance, I only work for somebody else". Later he gave a more detailed statement under caution in which he said that he worked as a courier carrying drugs from a parked car to the room receiving $300.00 per pound. He also said that he was unable to supply full details of the persons to whom he would subsequently sell the drugs. Of his previous convictions four related to drugs. Those drugs offences were committed in 1982, 1983 and 1986. But his only experience of a custodial sense was in respect of the 1983 offence when he was sentenced to detention in a drug addiction treatment centre.

5. He was born on the 14th September 1961 so he was 27 years of age at the time of the commission of these offences. He is a drug addict who needs 5 injections a day. He is a single man living with his father and had been working in a factory before becoming a drug courier. He was able to earn about $4,500.00 per month as a factory worker. It was said in mitigation that the motivation to commit these offences arose from pressure to marry applied by the parents of the girl with whom he had been keeping company for about 8 years.

6. In sentencing him the learned judge took account of the CHAN Chi Ming tariff and considered that the quantities involved placed the applicant's offences in the 8-12 year range. He focussed on the upper end of that scale, gave the Applicant a discount for his plea of guilty and sentenced him. to imprisonment. for 10 years on each count and ordered that the sentences be served concurrently.

7. The Applicant now seeks leave to appeal against the sentences and Mrs. Robertson who appears for him today submits that the sentences are excessive in that the learned judge erred in taking as his starting point the upper end of the appropriate scale in the CHAN Chi Ming tariff. She referred to R. v. CHENG Yeung (1989) 2 HKLR 258 wherein it was said that the upper end of the scale, that is, from 1 kilogram to 20 kilograms the range should be 8-20 years, and from 1 kilogram upwards in the early part of the curve representing the scale, the curve should rise more gradually than at the upper end. On that basis Mrs. Robertson submits that the appropriate starting point in this case should have been 10 years.

8. Her second submission is that the learned judge erred in making insufficient allowance for the Appellant's plea of guilty at the earliest possible moment. She referred us to Attorney General v. Han Man-fai and another [1989] 1 HKLR 290 where it was said that it appeared that judges had been giving discounts in the region of 25%, depending of course upon the circumstances of the individual case.

9. Generally speaking where discounts of 25% have been given there have been additional mitigating factors. Moreover, we think there can be no doubt that where a defendant is caught red handed or the evidence against him is in other respects overwhelming, he cannot expect to receive as     great a discount as that to which he might otherwise be entitled. In the instant case, the evidence against the Applicant was indeed overwhelming. He made no attempt to assist the police in further investigating the matter, and it was they, acting without the benefit of any assistance given by the Applicant, who found the drugs in the flat. It seems to us therefore that he cannot be heard to complain that he received a discount of 20 we also think that the starting point adopted by the judge, namely, imprisonment for 12 years, was appropriate in the circumstances.

10. It is worth observing that that starting point is consistent both with the guidelines in Chan Chi-ming and with the more recent guidelines in LAU Tak-ming.

11. We are of the view that the sentence of 10 years which the judge imposed with respect to each offence was not excessive and that there is no reason for us to interfere. We, therefore, refuse the application.