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Hksar v Cheng Yat Ming

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date20 July 2007
Subject MatterCriminal Appeal
Judgement NumberCACC455/2006
CourtCourt of Appeal (Hong Kong)
CACC000455/2006 HKSAR v. CHENG YAT MING

CACC 455/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 455 OF 2006

(ON APPEAL FROM DCCC NO. 738 of 2006)

____________________

BETWEEN

　 HKSAR Respondent
　 and 　
　 cheng yat ming (鄭日明) Applicant

____________________

Before: Hon Stuart-Moore Ag CJHC and Stock JA

Date of Hearing: 20 July 2007

Date of Judgment: 20 July 2007

______________________

J U D G M E N T

______________________

Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1. This is an application for leave to appeal against an overall sentence of 4 years’ imprisonment imposed on 19 October 2006 by Deputy District Judge Mierczak on two charges of trafficking in dangerous drugs. The applicant pleaded guilty.

2. Both offences were committed on 5 June 2006. The 1st charge related to trafficking in 4 grammes of powder containing 3.43 grammes of ketamine. This relatively small quantity was found on the applicant as he emerged from a flat which he had earlier been sent to enter.

3. The police then used the keys found on the applicant to search his flat. The drugs itemised in the 2nd charge were found inside, namely, 166.88 grammes of powder containing 142.06 grammes of ketamine, 11.13 grammes of a solid containing 8.75 grammes of cocaine and 155 tablets containing a total of 1.05 grammes of methamphetamine and traces of N, N-dimethylamphetamine. In addition, scales, spoons and plastic bags suitable for packaging the drugs were found.

4. In mitigation, the judge was told that the applicant had been the victim of a serious accident which had caused him to be laid off work and he was said to be in need of psychiatric help for depression. The offences were committed, it was said, because the applicant had been trying to earn extra money to support his wife and children.

5. The applicant has three previous convictions none of which were for offences of the kind now before the court.

6. The judge looked at each separate quantity of drugs in the 2nd charge. He indicated that an appropriate starting point for the ketamine was 2 to 4 years’ imprisonment after trial for between 25 and 400 grammes. (This equates with the guideline sentencing for ecstasy in HKSAR v Lee Tak-kwan [1998] 2 HKC 371 and [1998] 2 HKLRD 46 which was, in the absence of other guidelines, used as a basis for sentencing for ketamine in HKSAR v Leung Chun-fung [2003] 2 HKLRD 282) The judge calculated that a starting point of about 30 to 33 months’ imprisonment would be justified for the ketamine standing by itself.

7. With regard to the cocaine, for which the appropriate guidelines are the same as for heroin (see: Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69), the judge considered that the starting point would be about 4 years’ imprisonment as the guideline for up to 10 grammes was in the range of 2 to 5 years.

8. The remaining drugs in the 2nd charge, which the judge referred to as “fake ice”, were disregarded for the purposes of achieving an overall sentence. The judge went on to state that he considered 6 years as a proper starting point on this charge which he reduced by a third to reflect the guilty plea. On the 1st charge, a concurrent sentence of 4 months’ imprisonment was imposed after the judge had taken 6 months as the starting point for that offence.

9. Mr Boyton, in his ground of appeal, submitted, on behalf of the applicant, that the 6-year starting point on the 2nd charge was manifestly excessive as this was not a “just overall sentence”. He contended that the applicant had effectively received “two cumulative, deterrent sentences for the same offence”. He made no complaint about the individual starting points which the judge adopted for the cocaine and the ketamine but he contended...

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