HKSAR v. SUI CHING CHUEN

CACC 499/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 499 OF 2000

(ON APPEAL FROM HCCC 281 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 17 November 2000, the Applicant pleaded guilty in the Court of First Instance before Deputy Judge Toh to two counts of trafficking in heroin hydrochloride (heroin) and one count of manufacturing. The Applicant was sentenced to a total of twenty-four years' imprisonment.

2. The Applicant now seeks leave to appeal against sentence on the principal basis, which Mr Grounds has advanced on his behalf in his amended perfected grounds of appeal, that the judge failed to apply the principle of totality in a proper way which has produced a manifestly excessive sentence.

Prosecution's case

3. In brief, the prosecution's case against the Applicant was that he was arrested on 8 April 2000, as he left a 6th floor flat at 39 Tai Loong Street in Kwai Chung. He was found in possession of a bag containing a mixture, divided into three slabs, weighing just over a kilogram and containing almost exactly 479 grammes of heroin (count 1).

4. Keys in the Applicant's possession fitted the doors to the flat which he had just left. When police went inside, two further slabs of white powder were seen on the floor and numerous items were discovered which had plainly been used to manufacture heroin.

5. The manufacturing charge (count 2) was established from a combination of items. One such item was a mixture which was to be used to dilute heroin. The mixture weighed 3,213 grammes. It was found to contain caffeine, antipyrine, paracetomol and other ingredients. This was found together with equipment such as scales, blender motors, a metal mould, a hydraulic jack and several other items.

6. The heroin found in the flat (count 3) had a narcotic content weighing just over 283 grammes.

7. The judge imposed sentences of ten years, fourteen years and eight years' imprisonment on counts 1 to 3 respectively, ordering that the sentences on counts 1 and 3 should run concurrently and that the sentence on count 2 should run consecutively to count 1, making twenty-four years in all.

Error in approach to sentence

8. The judge regarded the pleas of guilty as having provided the only real mitigation. We entirely agree with her sentiment in this regard. The Applicant was forty-one years old. He had a number of previous convictions. Two of these were concerned with trafficking offences long ago, but in October 1999, the Applicant was released from a ten-year sentence for armed robbery. Within six months, he was committing the present offences.

9. The judge adopted starting points of sixteen years, twenty-one years and twelve years in respect of each count, giving the normal reduction of a third on counts 2 and 3 and slightly more on count 1. None of these individual starting points is open to criticism. The complaint, of course, relates to a sentence of twenty-four years' imprisonment, after pleading guilty to offences involving the trafficking in and manufacturing of heroin weighing less than a kilogram.

10. We have not had to trouble counsel as to the merits of this application. It is plain, as Ms Chan has very properly conceded, that it must succeed.

11. The sentence received by the Applicant is one which he might well have expected to have received after trial. Mr Grounds has expressly accepted this both today and in his amended perfected grounds of appeal. To have received twenty-four years' imprisonment on a plea of guilty, the overall starting point taken by the sentencing judge, who purported to have taken into account the totality principle, reflects a combined sentence of about thirty-six years before making the usual reduction of one third. If anyone in Hong Kong has ever been sentenced to thirty-six years or had this length of sentence adopted as a starting point before it has been discounted for a plea of guilty is difficult to say. Even in R v Ng Muk-kam, CACC 685/1993, where the quantity of heroin being trafficked weighed just over 306 kilograms, the life sentence originally imposed was substituted by a sentence of thirty-five years in the Court of Appeal. The present case pales into insignificance by comparison, in spite of the manufacturing charge.

12. Although the judge no doubt attempted to apply the totality principle, it is plain that her approach was in error. As we have intimated, a thirty-six-year starting point was wholly out of line with the kind of sentence to be imposed in a case of this kind. Twenty-four years, on the other hand, was amply justified as an overall starting point. This is because the trafficking charges were closely bound up with the manufacturing. They had occurred at the same time and place. The manufacturing of heroin, however, was an aggravating factor justifying an overall sentence in excess, on the present facts, of the twenty years' imprisonment which the Applicant would have properly expected to have received in total on the trafficking charges (counts 1 and 3).

Conclusion

13. Accordingly, we shall give leave and treat the hearing as the appeal.

14. We propose to maintain the individual sentences imposed for these offences but, in the proper application of the totality principle, we aim to reduce the overall sentence to be served to sixteen years' imprisonment. We shall achieve this by ordering that six years of the sentence on count 2 shall run consecutively to the sentence of ten years' imprisonment on count 1. The remainder of the sentence on count 2 and the whole of the sentence of eight years on count 3 will run concurrently.

15. The appeal therefore succeeds to the extent that the total sentence being served by the Applicant is reduced by eight years to sixteen years' imprisonment.

Costs

16. We shall award $30,000 in costs in favour of the Appellant which it has been agreed represent the reasonable costs incurred by the Appellant in these proceedings.

17. The Legal Aid Department had been asked to consider the merits of this appeal and formed the view that the sentence was "neither manifestly excessive nor wrong in law". We are astonished at the view taken by the Department when the merits of the appeal were so obvious. We invite counsel for the Respondent to ensure that the Director of Legal Aid is provided with a copy of this judgment.