HKSAR v. WONG KA LUN

CACC 294/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 294 OF 2010

(ON APPEAL FROM DCCC 190 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Yeung VP (giving the judgment of the Court):

Introduction

1.  The appellant (Wong Ka Lun) appeared before Judge D’Almada Remedios on a charge of trafficking in 27.74 grammes of a solid containing 16.32 grammes of cocaine. The appellant admitted possession of the cocaine, but claimed that the drugs were for his own consumption and he pleaded not guilty to the charge.

2.  The applicant was convicted and sentenced to 5 years’ imprisonment. He had applied for leave to appeal against both conviction and sentence.

3.  On 29 July 2011, a single judge of the Court of Appeal rejected his application for leave to appeal against conviction, but granted his application for leave to appeal against sentence.

4.  The appellant had not renewed his application relating to conviction and we are therefore only concerned with his appeal against sentence.

5.  The prosecution case against the appellant, largely undisputed, can be summarized as follows:

“The appellant was arrested by the police on 6 November 2009 shortly after 7.30 p.m. when he came out of his residence in On Yat House, Shun On Estate in Shau Mau Ping. The appellant was searched and the police found from his front jeans pocket a cigarette pack containing the cocaine, the subject matter of the charge. The street value of the cocaine was about $28,000.”

The appellant’s background

6.  The appellant, aged 35 years, was single. He cohabited with his girlfriend and they have a daughter and a son. The appellant claimed to be employed until shortly before his arrest. He said he had been addicted to cocaine for 12 years. The appellant has 21 previous convictions, mostly drugs related, including possession of and trafficking in a dangerous drug. There are other convictions involving dishonesty, such as theft, attempted theft and burglary. The appellant had been sentenced to jail on many previous occasions.

The Judge’s Approach

7.  The judge pointed out the tariffs in R v Lau Tak Ming and others [1990] 2 HKLR 370, that 16.32 grammes fell within the second band of 10 to 50 grammes, which warranted a sentence of 5 to 8 years’ imprisonment. The judge sentenced the applicant to 5 years’ imprisonment as he was convicted after trial.

Discussion

8.  The tariffs laid down in Lau Tak Ming (supra) apply to cocaine trafficking (see AG v Pedro Nel Rojas, [1994] 1 HKC 342). The judge’s approach and the sentence he had imposed on the appellant is appropriate and can be considered as lenient, particularly in the light of the appellant’s poor records. However, for the matters which have been disclosed to us in chambers, we are satisfied that the appellant deserves a sentence reduction of 3 months in accordance with the principle laid down in Z v HKSAR [2007] 1 HKLRD 977.

9.  We therefore allow his appeal and reduce his sentence from 5 years to 4 years and 9 months’ imprisonment.