THE QUEEN v. YIP KIT KWAN

IN THE COURT OF APPEAL

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J U D G M E N T

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Hunter, J.A. :

1. The applicant, Yip Kit Kwan, seeks leave to appeal against sentence arising out of 2 convictions, First, on 10th August 1988 he pleaded guilty before H H Judge Corcoran to 3 charges, The first charge was one of possession of dangerous drugs for the purposes of trafficking on 21st March 1988. The location was Reclamation Street. The quantity 314.13 grammes of a mixture. The second charge was possession of instrument fit and intended for the injection of a dangerous drug, and was said to be committed on the same occasion. The their charge was a charge of simple possession of a small quantity of 1.08 grammes of a mixture, The sentences imposed on that occasion by the judge were four and a half years on the first charge of possession, and 6 months concurrent on the two separate charges a total sentence of four and a half years.

2. In arriving at that sentence the judge took account of the quantity of drugs, the plea of guilty, and the fact that this applicant had a considerable record of drug offences. In March 1986 he a convicted of no less than of 6 offences of being in possession for the purpose of trafficking. He was released from the term imprisonment then imposed in January 1988. He took account of the same plea in mitigation which had put before this Court. This is that the applicant has spent so much time in jail that he finds it difficult to get a job then he comes out.   In effect, the only business that he knows is drugs.

3. From a starting figure of 6 years, and taking the mitigating factors into account, the judge arrived at the sentence of four and a half years. It seems to us quite impossible to criticise his approach or the sentence at which he arrived.

4. Two days later the applicant re-appeared before him. He then pleaded Guilty to 2 further charges of possession of a dangerous drug for the purposes of trafficking. In relation to the first charge, the date was 27th June 1988 the address was 907 Canton Road; and the quantity 452.60 grammes of a mixture. The second charge referred to the same date, and related to drugs found at the 4th floor, of 972 "Canton Road." The mixture quantity in that case was 160.75 grammes. The total mixture on that occasion was about 612 grammes, which was. nearly double the quantity involved oh the preceding offence The second offence was plainly committed whilst he was bail for the first The application of ordinary sentence principles pointed to two things. One, a consecutive sentence being imposed upon the second occasion; and secondly a sentence considerably in, excess of the sentence imposed on the first occasion to reflect first the increased quantity and secondly, this record.

5. The judge in fact only imposed a sentence of two and a half years. He did not do that by choice, but by virtue of the restrictions on his jurisdiction imposed by section 82 of the District Court Ordinance. It is very unfortunate in our view that subsection 1 of that section, and particularly the proviso to it, is so phrased that not simply on a single occasion, but on subsequent occasions arising, out of quite different offences, the limitations of the jurisdiction of a District Court judge are a total of 7 years. We very much doubt whether that is what the legislature intended. Unfortunately it is what they seem to have done. It has produced the situation in a case like this of forcing the District Court judge to impose what he recognised to be an almost ridiculous sentence.

6. It is therefore somewhat astonishing that this applicant comes to this Court complaining about the totality of these two sentences. He has derived the advantage of a possible legislative mistake. There is no substance in thin application whatever. To mark our view that this appeal is totally without merit, we direct that both sentences are to commence as from today.

    Since delivering of this judgment our attention has been drawn to the decision in R v Yuen Shek On [1987] HRLR 736. This decision shows that our criticisms of section 82 are probably not well founded, and that this trial judge had jurisdiction to impose a term of 7 years upon the second occasion.