HKSAR v. YIP PIK KWAI

CACC 593/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 593 OF 1998

(ON APPEAL FROM HCCC 281/1998)

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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 one count of trafficking in dangerous drugs, one count of possession of dangerous drugs and two counts of theft in the High Court before Deputy Judge Muttrie. She was sentenced to a total of 8 years imprisonment.

2. The resident of an apartment at Liberty Avenue reported to the police that someone was acting suspiciously outside his apartment in the early hours of the morning. Police officers came and found the applicant. She had a bag which was searched and found to contain the various articles the subject matter of the two theft counts and a quantity of heroin and ice. To be more precise one of the plastic bags contained 21.16 grammes of a crystalline solid containing 20.45 grammes of ice and 30 bags contained 15.67 grammes of a mixture containing 12.05 grammes of heroin hydrochloride.

3. The applicant admitted stealing the shoes referred to and claimed that the ice was for her own consumption. On the basis of the applicable guidelines the tariff for the quantity of ice is about 7 years and for the heroin about 5 years. The Judge proceeded to add the two terms of imprisonment together, consecutively, making a starting point on count 1 of 12 years.

4. The Judge gave the applicant credit for her plea thus arriving at the 8 years sentence. He passed a 4 month sentence for the possession of the small amount of dangerous drugs and for the two thefts and ordered that the sentences all be served concurrently.

5. The applicant claims that the sentences imposed were too heavy and draws attention to her distressing family circumstances.

6. One point does arise on this application which does require consideration. In the event of separate parcels of dangerous drugs being found by the authorities it is normally the practice to sentence a defendant on the total quantity of dangerous drugs rather than on the individual smaller quantities. This can be a matter of significance as the sentencing guidelines do not increase at a constant rate.

7. We do not see any reason why a different approach should be adopted simply because the two separate parcels of dangerous drugs are of a different nature namely ice and heroin.

8. One slight problem which arises is that although both heroin and ice attract heavy sentences the progression up the scale in respect of the respective guidelines is not the same. Having regard to the amounts involved it would appear that if the dangerous drugs had either all been heroin or all been ice the total sentence for the trafficking offence should have been somewhere in the region of 9 years imprisonment. When the applicant is given the benefit of her plea that would reduce the sentence to 6 years imprisonment. We consider this to be the fairest approach to this case.

9. We allow the application and treating it as the appeal we order that 6 years imprisonment be substituted for the 8 years imprisonment ordered on the first count. The sentences on the other counts are to remain the same. To this extent this appeal is successful.