R. v. POON CHI KIT

IN THE COURT OF APPEAL

1993, No. 323
(Criminal)

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J U D G M E N T

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Litton, J.A. (giving the judgment of the court):

1. This is an application to appeal against sentence.

2. The applicant was sentenced on 17th June 1993 in the District Court on his guilty plea on two charges: (1) possession of heroin for the purpose of unlawful trafficking and (2) reckless driving. The quantity of heroin involved was 55.32 grammes of a mixture containing 29.52 grammes of salts of esters of morphine. Both offences occurred on 12th January 1992.

3. The applicant was intercepted by the police in Kowloon when he was at the wheel of a private car. The police tried to stop his vehicle but it sped away. The applicant then engaged in driving which was highly dangerous to the public. He got away by ramming a car behind him, mounted the pavement, sped off in Peace avenue, passed through a number of red traffic lights, made an illegal turn into a carriageway which was one-way, drove across a central divide and was ultimately stopped. When the vehicle was searched there were found two plastic bags containing the heroin, the subject matter of the first charge.

4. The District Judge dealt with this applicant in a very lenient manner. In relation to the drug charge, he took the tariff laid down in the case of Lau Tak Ming [1990] 2 HKLR 370 and chose a starting point of 6 years which was somewhat favourable to this applicant. Taking into account his guilty plea he imposed the sentence of 5 years. As regards the reckless driving charge, he imposed a sentence of only 6 months' imprisonment to be served consecutively with the sentence on the first charge on the basis that he should have regard to the totality principle. The effect was that the applicant was sentenced to a total of 5 1/2 years' imprisonment.

5. The applicant has no similar previous conviction, received a Probation Report which could be said to be reasonably favourable. He had been at work as a broker in the sale of used cars for about 10 years before the offence. All of these factors weighed in the scales in his favour.

6. On the other hand, the two offences on which he was convicted were of considerable gravity. There was a suggestion that he was forced into the drug offence by a person nicknamed "Fei Chai Fat" but as the District Judge rightly pointed out there was no evidence to substantiate that and the judge rightly placed no weight whatever upon this allegation.

7. In our judgment, the District Judge had exercised his discretion correctly. The sentences were neither excessive nor wrong in principle. The application has no merit and must be dismissed.

Representation:

Paul Lam (M/S Phyllis K.Y. Kwong & Co.) for the Applicant

W.S. Cheung (Crown Prosecutor) for Crown