R. v. YAN KIN YI

IN THE COURT OF APPEAL

1996, No.203
(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 in this matter faced two counts of trafficking in dangerous drugs. In the first count it was alleged that on 5th July 1995, at the lift lobby of the Sun Hing Building in Nathan Road, he unlawfully trafficked in a mixture of 341.75 grammes of drugs which contained 47.91 grammes of heroin hydrochloride. The second count related to the same date and detailed a flat in the Sun Hing Building, i.e. a flat in the building, in which he was arrested and in that flat it was alleged that he had trafficked in 193.05 grammes of a mixture containing 59.62 grammes of heroin hydrochloride. He pleaded guilty to both of those offences and was sentenced by Wong J. to a total of seven years. We will turn to the way in which the judge computed that sentence later.

2. The facts were all too familiar. He was arrested at the ground floor of the building and was then taken up to an apartment in the building where the cache of drugs was found.

3. The trial judge when sentencing said:

"....... the only relevant and strong mitigating factor is perhaps a plea of guilty. Trafficking in dangerous drug is a serious and dirty offence. Personal background and circumstances are not valid and good mitigating factors. The fact that you sell drugs in order to make money to buy dangerous drugs for your own consumption, is again, not a good mitigating factor.

The practice of this court is, for many years, to decide a level sentence on the basis of the amount of heroin. This is clearly a case that falls fairly and squarely within that ambit."

He then went on to say that as regards the first offence he would take a starting point of six years which, because of plea, would be reduced to four years. As to the second offence, he said he would take a starting point of 81/2 years which because of plea he would reduce to 51/2 years. The judge then went on to say:

"And I accept that the two offences were in some way related. And for this reason I'm not going to order the sentence to run consecutive and full. Therefore, part of that sentence should be consecutive, to reflect the much larger amount of the quantity in count three. Now, the sentence of -- imposed in count three will commence to run at the expiration of 18 months of the sentence imposed on count two. That's a total of seven years."

4. We cannot agree with the approach of the trial judge. We are satisfied that the proper approach in offences of this nature is to take the total narcotic content involved in the two charges and to apply the appropriate tariff thereto. In this way the criminality of the two offences is established and properly dealt with. The total quantity involved here was 108 grammes of heroin hydrochloride. This would have resulted, applying the appropriate Lau Tak-ming tariff, to a starting point of 91/2 years. This could properly be reduced upon plea to 61/2 years. We are mindful that there is only six months' difference between seven years and 61/2 years. Would this court be tinkering if it reduced the sentence accordingly? We are satisfied that we would not. We have said on a number of occasions that where a judge is wrong in principle we must make our own assessment as to the proper sentence and that an applicant is entitled, if that assessment produces a sentence less than that imposed, to be sentenced to the lesser term. The application must succeed, the hearing of the application is treated as the hearing of the appeal and the sentence of seven years is varied to one of 61/2 years.