HKSAR v. TONG WUN KAU

CACC 340/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 340 OF 2007

(ON APPEAL FROM HCCC NO. 106 of 2007)

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JUDGMENT

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Hon Wright,  J.:

1.  The applicant pleaded guilty on 13 September 2007 before Deputy High Court Judge Line to three counts: Count 1, one of trafficking in a dangerous drug, 17.7 grammes of Methamphetamine Hydrochloride, contrary to section 4(1)(a) and (3); Count 2 - one of keeping a divan, in which Methamphetamine Hydrochloride, Midazolam and Ketamine were smoked or inhaled, contrary to section 35(1)(a) and (2); and, Count 5, one of possession of a dangerous drug, 9.98 grammes of Methamphetamine Hydrochloride, contrary to section 8(1)(a) and (2) all of the Dangerous Drugs Ordinance, Cap. 134.

2.  The first two offences came to light when, on 21 September 2006, police entered premises in Kwai Shing East Estate, in which the applicant resided.  The applicant and three other persons were found inside each using a device for the purpose of consuming Methamphetamine Hydrochloride or “Ice”.

3.  On 25 September 2006 the applicant appeared in Tsuen Wan Magistrate's Court charged with trafficking in a dangerous drug.  Despite the applicant’s substantial record of convictions of drug-related offences, including a conviction for trafficking in a dangerous drug, the magistrate saw fit to admit the applicant to bail despite objection from the prosecution.  The third offence was then revealed on 27 November 2006 when the police returned to the premises and executed a search warrant: although the applicant was initially charged with trafficking in drugs located on that occasion, the prosecution accepted his guilty plea to a charge of possession of those drugs.

4.  The applicant was sentenced to serve periods of imprisonment of 4 years, 18 months and 18 months on Counts 1, 2 and 5 respectively.  The sentences on Counts 1 and 2 were ordered to be served concurrently with one another, that on Count 5 to be served consecutively to those sentences: the aggregate sentence is thus 5 years and 6 months imprisonment.  He now applies for leave to appeal the sentence imposed on Count 5.

5.  In sentencing the applicant on Count 5 the judge said:

When it comes to the 5^th count where I deal with you for possession of the ice there, the amount is, in simple possession case terms, quite high.  You have a bad record for drugs and, accordingly, before any enhancement for latent risk, I would have taken the starting point of 18 months.  Your counsel recognizes that there must be some enhancement for latent risk, given the place the drugs were found and your previous history of consumption with others and the like.

I shall enhance by 9 months and take a starting point of 27 months therefore… and reduce that to 18 months by reason of your plea of guilty.  That will have to be consecutive and gives a total of 5½  years imprisonment, which I judge to be the right total for the whole picture presented on the indictment.

6.  The applicant has made reference today to two further cases in which others were sentenced in the High Court subsequent to this matter.  Those matters inevitably have different factual backgrounds.  Moreover a sentence which on the face of it may appear to be unduly lenient does not avail an applicant in other proceedings.

7.  The approach taken by the judge, in regard to the effect of previous convictions on sentence (HKSAR v CHAN Pui-chi [1999] 3 HKC 848), enhancement for latent risk (HKSAR v WAN Sheung-sum [2000] 1 HKLRD 405), ordering that the sentence in respect of a subsequent offence committed whilst on bail be served consecutively to a previous offence (HKSAR v Huang Thi Thu Huyen Cr App 195/2000) and totality, cannot be faulted.

8.  I would dismiss the application.

Hon Tang, VP.:

9.  For the reasons given by Wright, J., I also would dismiss the application. The application is dismissed.