THE QUEEN v. LAI WING KIN

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JUDGMENT

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Hon. Yang, C.J.:

1. This is an application for leave to appeal against sentence.

2. The applicant appeared before Deputy Judge Suttill and a jury on the 18th April 1990 on a charge of possession of a dangerous drug for the purpose of unlawful trafficking and pleaded not guilty. Two days after the commencement of the trial and during the hearing of the voir dire the applicant pleaded guilty to the charge. The judge, in sentencing the applicant, acknowledged that the applicant had "obviously been offered good advice", which the applicant took and the applicant pleaded guilty upon that advice.

3. The drugs involved were 9,674.45 grammes of a mixture containing 8,911.52 grammes of salts of esters of morphine. If one adopts the conversion formula suggested in the case of Cheng Yeung [1989] 2 HKLR 258, one would arrive at a figure of something over 120 kilogrammes of No. 3 heroin which by any account is a very substantial quantity indeed.

4. The facts are that on the 11th September 1989, the applicant was intercepted by the police at Kam Ping Street, North Point, and he was found to have in his possession the dangerous drug in question. The applicant's own story was that he was a courier and he was paid $20,000 for the delivery of the drug.

5. This would appear to be a Cheng Yeung situation (supra) but the trial judge seems to have taken into consideration the case of Lau Tak-ming [1990] 2 HKLR 370 for the purpose of assessing sentence for he said in his reasons for sentence that, if the applicant had pleaded not guilty, he would have been given a sentence "well in excess of 20 years".

6. As this is a case more properly considered under the Cheng Yeung guideline, the starting point adopted by the learned trial judge was too high.

7. In all the circumstances the proper discount in our view should be one of four years from a starting point of 20 years. The application is therefore allowed. We treat the application as the hearing of the appeal. The appeal is allowed and the sentence is reduced from one of 18 years to one of 16 years.