HKSAR v. YIM CHUEN

Dates of Hearing : 13 January 2006

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

 J U D G M E N T

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

Hon Stock JA (giving the judgment of the Court):

1. On 29 April 2005, this appellant was convicted in the District Court by Judge Mierczak of three charges of trafficking in dangerous drugs and one of possession of dangerous drugs.  He was sentenced, according to the judge’s calculations, to a total term of five years nine months’ imprisonment in relation to those offences, and the judge ordered four years six months of that total to run consecutively to a term of 23 months’ imprisonment passed in the District Court in December 2004, making an overall total of six years five months’ imprisonment.

2. The appellant subsequently applied for leave to appeal against conviction as well as against sentence.  That application came before the single judge on 15 December 2005.  The application for leave to appeal against conviction was refused and has not been renewed.  However, the single judge granted the application for leave to appeal against sentence for reasons that shall shortly appear.  This is that appeal.

3. The facts can be briefly stated.  Police officers were conducting an operation in a children’s playground in Western in early November 2004.  On 8 November 2004 they saw the applicant placing a substance in a flowerbed and engaging in a transaction with several men who paid him money and for whom he removed substances from the flowerbed.  He was intercepted and searched, and heroin was found in his trousers’ pocket as well as from the flowerbed.  This formed the basis of the first charge which alleged that he trafficked in dangerous drugs, namely, heroin, to the quantity of 2.11 grams.

4. The police then went to his premises nearby where they recovered more drugs under a mattress, in this instance 3.32 grams of heroin which formed the subject of the second charge, again of trafficking in dangerous drugs.

5. Two syringes were found on a table in which there was some liquid containing heroin.  This was the third charge of possession of 0.19 grams of heroin.

6. Finally, when the operation continued on 10 November 2004 the police saw the applicant engage in activity of much the same kind as on 8 November, and on this occasion further heroin was recovered from the flowerbed and still more from the applicant after he was taken into custody.  The amount of the drugs which were the subject of the fourth charge, again that of trafficking in dangerous drugs, was 3.31 grams of heroin.

7. To the third charge, that of possession, the applicant pleaded guilty but not guilty to the other charges and was convicted after trial.  The judge combined the amount of drugs in the first and second charges and imposed a sentence of three years and nine months’ imprisonment in relation to each, ordering those sentences to run concurrently.  For the third charge he took a starting point of twelve months’ imprisonment and imposed a sentence of eight months’ imprisonment, reflecting a discount for the plea of guilty.  That sentence was also ordered to run concurrently to the sentences imposed for the first and second offences; making a total thus far of three years nine months’ imprisonment.  In relation to the fourth charge, he imposed a sentence of three years six months’ imprisonment and, taking into account the aggravating feature that this was an offence committed only a couple of days after he had been arrested for the very same activity at the very same place, he ordered that 21 months of that sentence be served consecutively to the rest. 

8. Now, the resulting total ought to have been five years six months’ imprisonment.  But that was not the total expressed by the judge, and as was quite properly pointed out to the single judge by Miss Vivien Chan, the judge said that the total term of imprisonment for these four offences was five years nine months’ imprisonment.  That was incorrect, and that was the reason why the single judge gave leave to appeal against sentence. 

9. The overall result was affected by the fact that on 2 December 2004 the appellant had been sentenced to 23 months’ imprisonment in the District Court for two offences committed on 9 July 2004.  It that regard he had been charged, first, with trafficking in 11.56 grams of heroin; and, secondly, with resisting a police officer in the due execution of his duty.  In relation to the first charge, he was found not guilty of trafficking but of simple possession and sentenced to a term of 21 months’ imprisonment; and in relation to the second charge, to which he pleaded guilty, he was sentenced to a term of two months’ imprisonment, ordered to run consecutively to the sentence imposed for the possession of drugs offence, making a total of 23 months’ imprisonment.

10. In relation to these two sets of offences, what the judge did in this particular case was to order that four years six months of the overall sentence imposed on 29 April 2005 should run consecutively to the sentence of 23 months’ imprisonment imposed in December 2004, making a total of six years and five months’ imprisonment.

11. It might be argued, we suppose, that the totality reached is in fact unobjectionable.  Yet one must proceed on the basis that the judge’s assessment as to overall totality was made on his erroneous assumption that the correct total for the November offences was five years nine months, whereas it was in fact five years six months.  Accordingly, we must further proceed on an assumption in the appellant’s favour that had the judge reminded himself accurately of the total of five years six months imposed for the November 2004 offences, the total for the July 2004 and November 2004 offences would have been three months less. 

12. Accordingly, we allow the appeal to this extent: that of the total sentence of five years six months’ imprisonment for the November 2004 offences we order, in place of the judge’s order, that four years three months be consecutive to the twenty-three months imposed in December 2004, the rest to run concurrently, making a total of six years two months’ imprisonment.