THE QUEEN v. LAM KIN DIK

CACC000758/1995

 

	1995, No.758
	(Criminal)

 

IN THE COURT OF APPEAL

 

BETWEEN
	THE QUEEN	Respondent
	and
	LAM KIN DIK	Applicant

-----------------

Coram: Hon. Bokhary, J. A., P. Chan & Stuart-Moore, JJ. in Court

Date of hearing: 17th December 1996

Date of judgment: 17th December 1996

 

-----------------

JUDGMENT

-----------------

 

P. Chan J. (giving the judgment of the Court):

1. The applicant pleaded guilty to two counts of trafficking in dangerous drugs. He was sentenced to 8 years on each count. Two and a half years of the sentence on the 1st count was ordered to run consecutively to the first, making a total of 10 1/2 years. He now applies for leave to appeal against sentence.

2. The applicant was stopped at the lift lobby on the ground floor of a building in Tseung Kwan O. He was found to be in possession of a plastic bag containing dangerous drugs, namely, 1,037.28 grammes of a mixture containing 220.87 grammes of heroin hydrochloride. That formed the basis of the 1st count. The applicant then led the police to a flat in the building to which he held the key. Inside the premises, another quantity of dangerous drugs containing 1,302.92 grammes of a mixture containing 305.05 grammes of heroin hydrochloride was found. The police also found other items and his fingerprints were found on the wrappings of the dangerous drugs. That formed the basis of the 2nd count.

3. In this application, Counsel relied on two grounds. First, the two sentences should have been wholly concurrent and second, not sufficient discount had been given by the trial Judge for the applicant's mitigating factors including in particular his assistance rendered to the police.

4. Counsel quite properly accepted that it is the final sentence which one has to look at. In the present case, although there are two charges, the trial Judge, correctly in our view, treated them as one incident and for the total quantity involved, the case falls within the 15 to 20 years bracket., We think that the trial Judge was correct to adopt an 18 years starting point and arrive at an overall sentence of 10 1/2 years, having taken into consideration all the mitigating factors.

5. With regard to the applicant's mitigation, the trial Judge had said at page 12 of the bundle:

"In your case there are three important mitigating factors and, in order of importance, there are as follows:

	Firstly, you have pleaded guilty at the earliest possible stage and this earns you the greatest discount in sentence.
	Secondly, you have been co-operative with the police and given them such assistance and information as you have been able and I considered the helpful letter from Superintendent Williams in this regard.
	Thirdly, I take into account your age and your background. You will be 20 next week. For sentencing purposes you must be treated as adult but I disregard your one minor previous conviction and treat you as an adult with an hitherto good character."

The trial Judge also said:

""The sentence after trial of 18 years' imprisonment would be reduced to 12 for your plea alone. Because of the further mitigation, to which I have referred, I make a further reduction so that the overall sentence in your case will be ten-and-a-half years' imprisonment."

6. We think that the trial Judge had adopted the correct approach. With regard to the third mitigating factor, the authorities are clear to the effect that for serious offences of this nature, young age and clear record are not important mitigating factors. Nevertheless, the trial Judge had still taken them into account.

7. With regard to the assistance rendered by the applicant to the authority, Counsel argued that no sufficient discount was given. "The court does not encourage mathematical calculations of discount." We think the trial Judge had already given sufficient consideration to the applicant's co-operation. This is of course not a case of a supergrass in which discount of up to 1/2 or even 2/3 may be given. Further materials in the form of a memo from the Commissioner of Police and an affirmation by the applicant are placed before us. We do not think that such further materials would, as a matter of law, have any effect on the sentencing court. In any event, we do not think that the position has changed since the sentence was passed. We are also shown certain certificates showing that the applicant had acquired some academic qualifications while he is in prison. In our view, what he has achieved in prison is not material which can affect the sentence to be imposed by the court.

8. In the circumstances, having looked at all the mitigating factors and the further materials placed before us, we are of the view that the trial Judge had passed the appropriate and proper sentence which was neither wrong in principle nor manifestly excessive. The application is refused.

  

  

(K. Bokhary)	(P. Chan)	(M. Stuart-Moore)
Justice of Appeal	Judge of the High Court	Judge of the High Court

  

Representation:

Mr John Hemmings, inst'd by M/s Karbhari & Cham, for Applicant

Mr Albert Wong, S.C.C., for Crown