HKSAR v. WONG KAM WO

CACC 469/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 469 OF 2000

(ON APPEAL FROM DCCC 900 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 2 November 2000, the Appellant pleaded guilty in the District Court before Judge Pang to a charge of trafficking in a mixture containing 12.05 grammes of heroin hydrochloride and 103 tablets containing 1.928 grammes of midazolam maleate. The Appellant was sentenced to a total of three years and eight months' imprisonment against which he now appeals, leave having been granted on 2 March 2001.

2. The Appellant was trafficking in the drugs itemised on the charge sheet on 15 June 2000. The facts relating to his arrest are, for the purposes of this judgment, of no importance.

Sentencing remarks

3. The judge, having summarised the prosecution's case, noted that the Appellant, aged 41, had a criminal record consisting of seventeen previous offences which were "similar or drug related". In fact, there were no previous trafficking offences although the Appellant had acquired seven convictions for the simple possession of drugs.

4. The judge went on to take a starting point of five years and two months for the heroin. This was perfectly proper under the guidelines in R v Lau Tak-ming and Anor [1990] 2 HKLR 370. Next, the judge addressed sentence relating to the midazolam. In doing so, he had regard to HKSAR v Yiu Wai-chu HCMA 624/1997 (unreported) where it was observed that midazolam could be equated with methaqualone for sentencing purposes. The judge then looked at the guideline tariffs set out in Attorney General v Chan Chi-man [1987] HKLR 221 in respect of methaqualone and took a starting point of four months for the midazolam in the present offence.

5. The judge continued by saying:

"The next question is what should the total sentence be? I am aware of the case of HKSAR v Yip Pik-kwai [1999] 3 HKLRD 42, in which it is said that in a case involving two kinds of drug in a charge of trafficking, the proper approach is not to add the proper sentences of both together and to make them run consecutively. Instead, the proper approach is to try as much as possible to consider the two kinds of drugs together as a batch and to apply the proper tariff. That case, however, involved heroin and ice, both attracting heavy sentences, and the progression up the scale in respect of each is, although not the same, similar. In this case the two drugs are of very different nature and their progression up the scale of the proper sentences vary a lot.

Having considered all the circumstances, the authorities and also the principle of totality, I have decided to adopt the following approach, that is, I will in this case add 3 years and 8 months for the heroin and 4 months for the midazolam together, making it a total of 4 years. For your plea of guilty I will take the customary one-third off it. This, I think, is the best and most sensible approach to the present matter notwithstanding the Court of Appeal's observation in Yip Pik-kwai, which I referred to earlier on.

In other words, with the one-third discount you will go to prison for a total of 32 months."

Errors in approach to sentence

6. Leaving aside, for the moment, the additional sentence of four months in respect of the midazolam which was the principal reason leave was granted for this appeal, the judge had plainly overlooked the fact that he had earlier taken five years and two months as his starting point for the offence of trafficking in heroin which, added to the sentence of four months for the midazolam, would have resulted in a starting point of sixty-six months. Perhaps the judge had intended to reduce this combined starting point by a third to arrive at three years and eight months. Whether or not we are right about this, the judge had ended up by taking three years and eight months as his starting point for the heroin together with a further four months for the midazolam, making a total of forty-eight months, which he then discounted by a third to arrive at two years and eight months.

7. At some stage after the court rose, prosecuting counsel very sensibly pointed out the judge's error. The court reconvened later in the day when the judge said:

"In sentencing the defendant this morning I indicated that in my view the most sensible approach was to add the starting points of the two drugs together and then give it the customary discount for a guilty plea. I indicated that the appropriate starting points were 5 years 2 months for ice and 4 months for midazolam. In adding them together however, I, through a slip of the tongue, took 3 years 8 months for ice, making the total sentence of 4 years before any discount.

3 years 8 months is, in fact, the total sentence that the defendant should serve after adding 5 years 2 months and 4 months together and then discounting it by a third. So, in fact, 3 years 8 months is the sentence that you should serve.

I therefore gave instructions for counsel to reconvene to clarify the matter which is what I am doing now. I am satisfied that I have the power to adopt the present course as the certificate recording the sentence has not yet been drawn up. I rely on the case of Secretary for Justice v Yuen Lit-ping [1999] 1 HKC 476 at 481. I thank prosecuting counsel for pointing my mistake out to me at a sufficiently early stage."

8. Fortunately, the erroneous references in these remarks to "ice" were insignificant. This case, of course, was concerned with heroin, not "ice", but the starting point of five years and two months which the judge had intended to take in respect of the heroin was not in itself open to criticism.

9. Perhaps these "slips of the tongue" serve to illustrate the desirability of having a written note of some kind prior to delivering judgment or, as in this case, passing sentence. The procedure is a solemn one, often with serious consequences for the offender. It cannot be treated lightly or as a matter of routine. This Appellant had waited for over four and a half months to find out his sentence and when it came, he would have been relieved to learn that it was far shorter than he might have expected. Within a few hours, this had been restored to the sentence which the judge had intended in the first place. At the very least the Appellant is owed an apology which this court can give him for the way his case was handled in the lower court.

10. We come next to a consideration of the additional sentence imposed for the midazolam. The judge was aware of the Court of Appeal's decision in Yip Pik-kwai [1999] 3 HKLRD 42 but he seems to have concluded that because midazolam was a drug of a "very different nature" to heroin, an additional sentence was merited despite the fact that the amount was very small. If that approach was right, it would mean that where the drugs were of a similar kind and far more serious, such as the heroin and "ice" in Yip Pik-kwai, a defendant would receive an appropriate sentence to take into account the totality of the drugs in question and yet, as here, where they were not similar, an additional sentence would be appropriate, regardless of the amount involved.

11. We are satisfied this cannot be right. Trafficking in midazolam is far less serious than trafficking in heroin. If the quantity of midazolam had, for argument's sake, been a further quantity of heroin weighing about 2 grammes, it is most unlikely that the sentence would have been affected. In our opinion, it was inappropriate, therefore, for the Appellant to have received any additional sentence merely because midazolam was a drug of a different nature to heroin. In this sense, the judge erred in principle by having added to the Appellant's sentence.

Conclusion

12. For the reasons we have given, we propose to allow the appeal. We shall, in the light of all that has happened, adopt a starting point of five years' imprisonment for all the drugs on the charge sheet. This must then be discounted by one third, but in view of the highly exceptional and most unfortunate circumstances which arose on the day of sentencing, we propose to give a slightly increased discount. We shall quash the sentence of three years and eight months and substitute this with a sentence of three years' imprisonment.