HKSAR v. CHAN PUI CHI

CACC000706A/1997

CACC706/97

HEADNOTE

Criminal law - sentence - previous offences of the same or a similar kind - aggravation of the crime for the purposes of sentence - deterrence needed for persistent re-offending as a protection of the public.

CACC706/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 706 OF 1997

(ON APPEAL FROM HCCC 117 OF 1997)

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

1. An application for leave to appeal against conviction was dismissed by this Court, differently constituted, on 3rd November 1998.

2. The Applicant was sentenced on 4th November 1997 by Suffiad J. to a total of fourteen years' imprisonment for two offences of trafficking in heroin hydrochloride. The narcotic content particularized in count 1 was 37.34 grammes and, in count 2, it was 223.43 grammes, amounting in all to 260.77 grammes.

3. The Applicant made his first application for leave to appeal against sentence on 11th March 1999, pointing out that between August to October 1998, he had been in Queen Mary Hospital with a serious complaint which led to a delay in filing his notice. Whilst we extend every sympathy to the Applicant for his recent serious illness this was, of course, no explanation for his late filing of an application relating to sentence which, by August 1998, was already about eight months out of time.

4. Legal Aid has now been granted apparently on the ground that as the guidelines for sentence in such a case as this, taken from The Queen v Lau Tak-ming, (1990) 2 HKLR 370, show that from 200 to 400 grammes of narcotic content will normally produce a sentence of between twelve to fifteen years' imprisonment, the appropriate starting point should have been at the lower end of the scale. This ground specifically states that 223.43 grammes was the amount for which the Applicant fell to be sentenced, and more of this needs to be said in a moment.

5. We heard Mr. H.Y. Wong, on behalf of the Applicant, notwithstanding that no good reason had been put before this Court for hearing the application out of time.

6. This Court has frequently said that in situations such as these, the overall narcotic content should be taken into account in order to avoid the unfair result of consecutive sentencing on another count. For example, in the present case the narcotic content in count 1 was 37.34 grammes which falls within a band of five to eight years under the Lau Tak-ming guidelines for amounts of between 10 and 50 grammes. On this basis, the Applicant would normally have received approximately seven years' imprisonment although the judge in fact imposed six years' imprisonment on the first count for reasons which are not clear. The narcotic content in count 2 was 223.43 grammes and, if this stood alone, the Applicant might normally have expected to receive a sentence of approximately twelve years' imprisonment because, as stated earlier, the guideline tariff is twelve to fifteen years for 200 to 400 grammes. It can immediately be seen that great unfairness would have been caused to the Applicant if these two sentences had been made consecutive in whole or to a substantial degree. This would otherwise have resulted in a combined sentence in the vicinity of eighteen years imprisonment, which would have been wholly wrong in principle.

7. It is clear that the judge rightly treated the two amounts of narcotic as one for the purposes of sentence on count 2.

8. Looking at the total narcotic content, amounting to 260.77 grammes, undoubtedly the sentence of fourteen years was still on the high side. Thirteen years, and to this extent we can agree with Mr. Wong, might have been more strictly in accordance with the tariff bracket. However, these tariffs, as we have said before, are not strait-jackets. The judge had to look at all of the circumstances of the case.

9. Whilst the judge said nothing to indicate what was in his mind when passing sentence, no mitigation had been advanced on behalf of the Applicant at the conclusion of the trial. This is not surprising. The Applicant had 22 previous convictions and had previously, in 1988 and 1992, been sentenced respectively to 5 years and 6 1/2 years' imprisonment for trafficking in dangerous drugs. His criminal record showed several other drug-related offences including others for trafficking.

10. The fact that the Applicant had a criminal record cannot by itself necessarily increase his sentence, but the plain fact remains that he, like any other defendant with previous convictions, was being sentenced against the background of that record. Obviously, if the Applicant had been sentenced on a clean previous record, there would have been no obvious reason for the judge to have departed from the normal tariff of about thirteen years' imprisonment which the Applicant might well have expected. However, this was not the case.

11. Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this Applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

12. We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none. If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.

13. In R v Billam, (1982) Cr App R 347, the English Court of Appeal set out (at page 350) eight factors which aggravate, for the purposes of sentence, the crime of rape. The fifth of these is:

14. The court went on to say that:

15. Extending this principle to another more common example, in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for repetition.

16. There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.

17. In drug trafficking cases, this was clearly recognised in Lau Tak-ming at page 386F where the Court said:

18. In this case the Applicant's previous history of offences was appalling and his mitigation was non-existent.

19. The Applicant's sentence was well within the general bounds which are set for offences of this gravity.

20. This application is utterly misconceived and has no merit at all. The Applicant could well have expected to have received a longer sentence than the one which was passed upon him.

21. We shall, accordingly, refuse leave to appeal out of time.

Representation: