HKSAR v. HO SAI CHAK

HCMA780/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 780 OF 1999

(on appeal from NKCC 4129 OF 1999)

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J U D G M E N T

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1. The Appellant pleaded guilty before a magistrate sitting in the North Kowloon Magistracy to one charge each of trafficking in dangerous drugs and of keeping a divan where dangerous drugs is sold. The drugs involved in the trafficking charge is 1.53 grammes of heroin hydrochloride. The place concerned was a flat at No. 309 Reclamation Street. On the 1st charge the appellant was sentenced to 16 months' imprisonment and on the 2nd charge 8 months' imprisonment. The learned magistrate ordered that the sentences to run consecutively, making a total of 24 months imprisonment.

2. As to the 1st charge, the magistrate adopted a starting point of 2 years, which is within the guidlines of the case of LAU Tak-ming for drugs of this nature and quantity. He gave a one-third discount for his plea. On the 2nd count, the learned magistrate was faced with a problem that there are no sentencing guidelines for this type of offence. He adopted a starting point of 12 months and gave a full one-third discount, arriving at the net figure of 8 months.

3. There can be no criticism for the prison term of 2 years for the 1st charge. On the 2nd charge of a starting point of 12 months, it is contended by counsel for the appellant, as too high. With respect, I disagree. A divan is a place where drug addicts would frequent and use it as a safe house to consume drugs. It is part and parcel of a chain of drug trafficking activities. I am not persuaded that a starting point of 12 months is too long under the circumstances of the present case.

4. Another ground of appeal was that the learned magistrate erred in principle in ordering that the sentences to be run consecutively. The reason, it is said, that these are offences arising from the same set of facts. I have been referred to the cases of NG King v R [1966] HKLR 18 and AG v CHANG Pit-yu [1989] 2 HKLR 12. Although it can be said that the defendant was arrested in one police operation, however, the act of providing drugs to others for consumption and that of keeping a divan are different and separate matters. One activity does not necessarily include the other. The appellant was prepared, in addition to providing drugs, to offer the convenience of a divan to drug addicts. As such, the two charges cannot be said to be arising out of the same set of facts.

5. The order for the sentences to run consecutively cannot be criticised as being wrong in principle. However, one must not lose sight of the totality principle. On that basis, I take the view that the sentence is too long to the extent that it is manifestly excessive. I would therefore order 4 months of the 2nd count to run concurrently with the 16 months of the 1st count, with the balance of 4 months to be consecutive. This would give a total prison term of 20 months. To that extent, the appeal against sentence is allowed.