HKSAR v. SEABROOK MARK ANTHONY

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 364
(Criminal)

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D E T E R M I N A T I O N

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Leong, J.A. (giving the determination of the Court) :

1. This is an application for leave to appeal to the Court of Final Appeal. On 3rd September 1996 the applicant committed two offences of trafficking in a dangerous drug "ecstasy". The number of tablets involved was 352 in total and the total weight was 22.15 grammes. He was convicted of both offences on 9th May 1997 and was sentenced on 30th May 1997 in the District Court. He was sentenced to a total of 4 years and 4 months' imprisonment on both offences. The District Judge arrived at the sentences imposed by following the rationale in R v Dullage and Way [1996] 2 HKCLR 116.

2. On 26th May 1998 the Court of Appeal in the case of HKSAR v LEE Tak-kwan [1997] Crim. App. 177 handed down guidelines for sentencing offences of trafficking in "ecstasy" and according to these guidelines, for the offences the applicant had been convicted of, the sentences would be one of under two years at the discretion of the sentencer.

3. In HKSAR v Mark Humphries [1997] Crim. App. 645, two offences of trafficking in "ecstasy" weighing totally over 50 grammes were committed in May and September 1996 and sentence was passed in August 1997. On appeal after the guidelines in LEE Tak-kwan were handed down, the Court of Appeal without being addressed as to whether the new guidelines were applicable adopted the new guidelines and reduced the sentences accordingly.

4. The applicant in his application for leave to appeal against sentence out of time which was heard on 16th July 1998, argued that new guidelines should similarly apply to his case and the sentences should accordingly be reduced.

5. The respondent in the appeal argued that the established principle is that the sentence of an offence should be in accordance with the prevailing practice of the court at the time of sentence and this is to ensure finality of court proceedings. This court accepted the argument and held that the new guidelines are not applicable in the applicant's case when both the date of the offences, the date of conviction and the date of sentence were long before the new guidelines were handed down in LEE Tak-kwan on 26th May 1998.

6. The application for leave to appeal to the Court of Final Appeal against the decision of this court is on the basis that a point of law of great and general importance is involved in the decision. The applicant raises the following points of law:

"1. Is an applicant, in an appeal against sentence, entitled to the benefit of the provisions of s.8 and article 12(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383 where in the interval between the commission of the offence and the hearing of the appeal against sentence, sentencing guidelines set down by the Court of Appeal had reduced the general level of sentences below that which would have been imposed at the time when the offence had been committed?

2. Is there a fundamental right vested in a convicted person to have his sentence reduced when, in the interval between conviction and appeal, it has been held by the Court of Appeal that the basis upon which the sentence had been imposed were wrong in principle and so manifestly excessive?"

7. In an application of this nature, the applicant must show that the point involved must be at least reasonably arguable before leave can properly be granted (LEE Kin-pong v. HKSAR [1997] FAMC 11).

8. Mr. Mullick for the applicant accepts the principle of finality of proceedings but he submits that there is no finality unless all the avenues of appeal have been exhausted.

9. He submits that the basis upon which the applicant was sentenced having been ruled wrong in principle by the Court of Appeal in LEE Tak-kwan albeit quite sometime after the applicant was sentenced, the applicant nevertheless had a fundamental right to have his appeal heard and sentenced reduced. Reference is made to s.8 and article 12(1) of the Hong Kong Bill of Rights specifically the third sentence of article 12(1) which reads:

"If subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby."

Mr. Mullick submits that in the present case where the guidelines reduce the sentence, this part of article 12(1) applies.

10. Reference is also made to what was expressed by Lord Scarmen in the R. v. Cain [1984] 79 Cr. App. R. 298 that there is a fundamental right of appeal "against sentences not authorised by law, as well as against the sentence which is too severe or is inappropriate."

11. As regards the first point, the respondent argues that Article 12(1) is concerned with change in statutory penal provisions and not applicable to the present case which involves judicial attitude towards certain offences. Reference is made to the Privy Council case of CHAN Chi-hung v. R. [1995] 2 HKC 721 where it was held that "the purpose of article 12(1) was plain, namely to make sure that the criminal consequences of what someone has done are judged according to the law as it stood when he or she did it." Reference is also made to a series of cases in the Court of Appeal on the question whether article 12(1) applies when there is a change of the law producing a lower maximum sentence for a criminal offence (R. v. LAI Kai-ming [1993] 3 HKPLR 58; R. v. WAN Siu-kei [1994] 2 HKCLR 127; R. v. CHAN Kein-wing & Another [1994] 1 HKCLR 41; R. v. TAZ Yiu-wah [1995] 1 HKCLR 139). But the respondent points out that these cases involve a change to a lighter penalty by statutes before conviction and/or sentence of the offender whereas in the present case the new guidelines were handed down long after conviction and sentence. Reference is further made to the comment of Bokhary, J.A. (as he then was) in R. v. WAN Siu-kei [1994] 2 HKCLR 127 that "article 12(1) goes to substances rather than form; and the effect of the final sentence thereof is this: when a person comes to be sentenced, and the substance and reality of the matter is that the maximum penalty for his criminal conduct has been reduced between commission and sentencing, then he is to be sentenced on the basis of the reduced maximum". The respondent's submission is that it cannot be reasonably argued that article 12(1) will assist the applicant to make the new guidelines applicable to his case.

12. The respondent further relies on s. 101J of the Criminal Procedure Ordinance, Cap. 221 which provides:

"(1) Subject to subsection (2), where an act or omission is an offence and the penalty for the offence is amended between the time a person commits an offence and he is convicted of the offence, the offender is liable to the penalty prescribed at the time of the offence.

(2) If the amended penalty is a lighter penalty, the offender is liable to the lighter penalty."

13. In our judgment, both article 12(1) and s. 101J of the Criminal Procedure Ordinance contemplate that an offender is to be punished according to the penalty provided by law at the time of the commission of the offence and a subsequent change to lighter penalty by statute will only benefit the offender if the change is before conviction and/or sentence. This is reflected in the line of cases decided on the proper interpretation of article 12(1) referred to in the present case. Although sentencing guidelines handed down by a higher court are there to be followed, as opposed to statutory provisions which are binding on the sentencing court, a lower court in an appropriate case may depart from them where there are justifications for doing so.

14. We agree that there is no arguable case on the first point.

15. On the 2nd point, the respondent submits that the basis on which the District Judge sentenced the applicant is not inconsistent with LEE Tak-kwan since the approach in Dullage and Way is not inconsistent with the ruling in LEE Tak-kwan. The sentence is not wrong in principle. In any case, it is submitted that the 2nd point of law is not involved in the decision of this court.

16. The 2nd issue posed does not arise in this case. First, the proposition that a sentence which is wrong in principle falls to be reduced or set aside even if the error of principle only emerges as a result of a decision after sentence, is a proposition which is established, and one with which this court does not take issue. The decision of this court on this appeal against sentence does not gainsay that principle. Secondly, the error of principle to which the Court of Appeal referred in LEE Tak-kwan did not arise in Dullage and Way, which the District Court Judge followed. In LEE Tak-kwan the trial judge had drawn no distinction at all between heroin and "ecstasy", and relied for his approach on the English Court of Appeal decision in Warren and Beeley [1996] 1 Cr. App. R.120. It was that reliance that was said to be wrong in principle. In Dullage and Way, the judge was not saying that because the English Court of Appeal and legislation categorised the two drugs as the same, we in Hong Kong should follow suit. Although he said that the approach of the English Court of Appeal might be followed, he only said that upon a detailed analysis of the evidence then before him about the effect of the drug "ecstasy" - evidence which suggested that the drug could be fatal. It was on the evidence that the court in Dullage and Way arrived at conclusions about the appropriate approach to the drug for sentencing purposes, and even then, stated that it was not to be treated as severely as heroin, for it was not addictive. In other words, it is not arguable that the error of principle made in LEE Tak-kwan was repeated in Dullage and Way. We agree that the 2nd point of law is not involved in the decision of this court and is not of great and general importance.

17. We refuse the application.