HKSAR v. IP FAT YEE

IN THE COURT OF APPEAL

1997, No. 118
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty to possession of a small quantity of dangerous drugs and trafficking in dangerous drugs and was sentenced to six months' imprisonment for the first offence and 10 years' imprisonment for the second. He seeks leave to appeal against the sentence imposed on the second count.

2. The issue raised is within a narrow compass. The particulars of the second offence are that the applicant unlawfully trafficked in dangerous drugs namely 95.29 grams of a mixture containing 83.43 grams of methamphetamine hydrochloride (otherwise known as ice) and 77.31 grams of a mixture containing 25.22 grams of heroin hydrochloride.

Deputy Judge Lugar Mawson on the basis of the Ching Kwok-hung guideline for ice and the Lau Tak-ming for the heroin adopted 17 years as his starting point. In this connection it would appear that sentences somewhere in the region of 11 years for the ice and 6 years for the heroin would have been approximately what one would expect to be appropriate sentences. The judge then reduced the sentence to 15 years and gave the usual 1/3 discount to the applicant thus achieving the 10 years' sentence which was imposed.

3. Mr H.Y. Wong for the applicant submitted that the correct approach to adopt in cases where different types of dangerous drugs form the subject matter of a charge was to add together the sentences appropriate for the separate dangerous drugs and then consider the totality of the sentence and reduce it as required. He argued that this was the approach adopted by the Court of Appeal in R. v. Kwan Wing-cheong [1994] 2 HKC 485. Mr Wong contended that the judge had failed adequately to consider the totality of the sentence.

4. There is some merit in these contentions. While there could be no question of the separate sentences being wholly concurrent it is a fact that in the scale of sentences appropriate to each type of dangerous drugs the amounts at the lower end of the scale attract proportionately higher sentences than do larger amounts. It is therefore imperative to impose a sentence on the basis that only one offence has been committed. 10½ years' imprisonment would have been a proper starting point. The applicant is entitled to the usual discount for his plea.

5. The application is allowed and treating it as the appeal itself we substitute a sentence of 7 years for the sentence which was imposed. To this extent the appeal is successful.