HKSAR v. CHOW SHUN WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.12
(Criminal)

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J U D G M E N T

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

1. The applicant was convicted after trial of five charges of trafficking in dangerous drugs before Deputy Judge Wright. He was selling dangerous drugs and in each case the packet which he sold contained about 0.04 gramme of narcotic content. He was sentenced to 24 months on each charge but nine months of the second, third, fourth and fifth charges was ordered to be consecutive, and a suspended sentence was activated three month of which was also ordered to be consecutive. He now seeks leave to appeal against sentence.

2. The facts revealed that on five occasions from 23rd May to 17th June 1997, he had sold small packets of dangerous drugs in the vicinity of the Yung Shu Tau Park, Yaumatei. The places at which the offences occurred are set out in each charge: Reclamation Street, Yung Shu Tau Park and 7-11 Convenient Store in Temple Street. There was another applicant charged at the same time but only with one offence (the fifth charge). He assisted in the sale in that offence.

3. The trial judge, when sentencing, said:

"I would be ignoring daily experience not to recognize that the sale and purchase of drugs in small quantities is prevalent. The Court of Appeal even without evidence before it or the court a quo has accepted that there has been an increase in possession offences generally.

It is equally apparent that this particular park is notorious for offences of this nature. It is a variable supermarket for small-scale drug transactions as indeed is evidenced by the 1st defendant's continued trading at the same venue. In this regard, there is the helpful evidence of PW1 and PW3 which emerged during cross-examination on behalf of the 1st defendant to the effect that this park enjoys such a reputation and is the subject or repeated offences by the police.

Past sentences appear to have had little effect on reducing the incidence of this offence. In such cases, it is appropriate to have greater regard than usual to the deterrent aspect of the sentence.

Transactions involving a single packet or a limited number of packets of drugs and thus a limited quantity of narcotic are common as is clearly demonstrated by this case. It is precisely at this level and in these quantities that the regular drug dependent and casual drug abuser received his supply. If the oft-expressed sentiments, firstly, that those involved in this trade can expect no mercy from the courts and, secondly, that reducing the number of suppliers will address the problem, then it is precisely at this level that for those involved in trafficking robust sentences are appropriate.

To suggest that for the police not to have arrested the 1st defendant after the first sale by him is unfair to him is wholly unrealistic. The evidence quite clearly showed that the 1st defendant would supply without the slightest demur to anyone who approached him. He had what virtually amounted to an ongoing retail operation.

The 1st defendant's agreement of certain of the facts saved such a small amount of time as to be of no real consequence. More to the point, such an admission did not amount to the exhibition of any remorse.

Each of these offences was committed by the 1st defendant on separate and distinct occasions. Notionally the sentences should properly be ordered to run consecutively to one another. If I were to make such an order, the total period of imprisonment would amount to 10 years taking a starting point of 2 years. That exceeds my jurisdiction.

I have to stand back and have regard to the total sentence to be served by the 1st defendant. In my view, this may best be achieved by ordering that a portion only of the sentences on the 2nd to 5th charges be served consecutively. The sentence I impose is as follows:

The judge then imposed the sentences which we have already indicated.

4. Three grounds have been argued today. We shall deal firstly with the second ground, which is that:

"In view of the fact that the Appellant has not had any previous conviction for the offence of trafficking, the learned judge erred in principle in holding that an enhanced total sentence was justified in the circumstances of the case."

5. The "enhanced total sentence" was, in fact, the starting point. We think it unfortunate that that phrase "enhanced total sentence" was used. The phrase "starting point" would have been more appropriate. The judge was, in our view, quite right to take into account all of the circumstances of the offences when arriving at that starting point. The applicant was not entitled to have any credit for the fact that he had no previous convictions for this offence as he was not a person of good character having a record which was spectacularly bad. There is nothing in this ground.

6. The first ground was that:

"The judge, in ordering nine months out of each of the 24 months terms of imprisonment imposed for charges 2-5 inclusive to run consecutively to that of charge 1 and to each other, has not made sufficient adjustment in accordance with the totality principle."

7. Under this ground, it was argued firstly that the judge had placed undue weight upon the deterrent element and upon the factors which he enumerated, in particular that this was a drug black spot, and that sentences in the past had little effect on reducing the incidents of the offence. We reject the suggestion that the judge was not entitled to take those matters into account. They were clearly relevant. He was the sentencing judge in an area which he knew, and he clearly was entitled to take into account matters which, as he said, had come daily to his notice when sitting as a judge.

8. It was further argued that there was not sufficient adjustment for totality reference being made to A.G. v. To Ka-yin Application for Review No.3 of 1996. We bear in mind the approach that was used therein but are satisfied that this was a much more serious case. The narcotic content in each sale was some six times more than that in To Ka-yin and as the judge set out, there were a number of special factors which gave a particular seriousness to these offences.

9. To Ka-yin is of little assistance when assessing penalty. The judge took into account all of the matters he should have. He conducted a careful and proper sentencing exercise. We are satisfied that the sentence was in no way excessive or wrong in principle. We therefore refuse the application.