HKSAR v. CHAN HEI KAM

CACC229/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 229 OF 1999

(ON APPEAL FROM HCCC 7 OF 1999)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 7th April 1999, the Applicant pleaded guilty before V. Bokhary J. to two charges of trafficking in dangerous drugs and was sentenced to a total of eight years' imprisonment. The Applicant now seeks leave to appeal against this sentence.

2. The simple facts were that on 3rd September 1998, the Applicant walked into a police ambush as he left premises on the Tsui Ping Estate in Kwun Tong. The Applicant was carrying a bag which was found to contain eight packets of white powder. On analysis, the narcotic content in the mixture weighed 30.92 grammes of heroin hydrochloride (charge 1). He told the police that there was no more white powder to be found in the premises. Obviously, that answer was not simply accepted and, on checking the premises, it proved to be untrue. The Applicant also falsely blamed a friend of his for having responsibility for the drugs. However, in later interviews, he set out the truth of how he had come to be involved in trafficking for someone he called "Ah Cheung". He said that he had no way of getting in touch with this man. The drugs found at the premises related to the second charge. The mixtures were found to contain 11.48 grammes of methamphetamine hydrochloride (ice) and 19.17 grammes of heroin hydrochloride.

3. In summary, therefore, the Applicant had to be sentenced in respect of almost exactly 50 grammes of heroin hydrochloride and 11.48 grammes of ice. He had a dreadful criminal record consisting of twelve convictions which are mostly drug related, including five for trafficking in dangerous drugs. He had already begun to serve a sentence of three years and four months for the last of these offences by the time he was sentenced in the present case. Furthermore, the present case was itself an offence committed whilst on bail for yet another alleged offence of trafficking in heroin.

4. The judge's approach was firstly to look at each count of trafficking separately and to make an assessment of the appropriate sentence for each separate quantity of the drugs named in the charges. She took a 61/2 year starting point for the heroin in charge 1, and starting points of 5 years and 9 months and 7 years and 3 months for the heroin and ice respectively in charge 2. Looking at the totality of the sentences in charge 2, amounting to 13 years' imprisonment, the judge next reduced this to 9 years. The judge then made appropriate reductions to take into account the Applicant's pleas of guilty, leaving four years and four months on charge 1 and six years on charge 2. Again, the judge looked at totality and, by a process of imposing partially concurrent sentences, she achieved a term of eight years' imprisonment in all, and ordered that seven years of that sentence should be consecutive to the period of imprisonment he was then serving.

5. Mr. Laskey, on behalf of the Applicant, submitted that the judge's approach to sentencing was in error in two ways. Firstly, he argued, the judge was wrong to have taken separate starting points for the heroin and the ice in the second charge, and then to have made these starting points consecutive to each other before considering totality. Secondly, he submitted, the sentences on charges 1 and 2 should not have been made partially concurrent with each other. It was his contention that they should have been made wholly concurrent.

6. It is perfectly true that in cases where two types of drugs, each in small quantities, are involved, there would be great injustice caused if a judge was merely to look at the guidelines for the drugs in question and make the sentences consecutive to each other when in effect all the drugs formed one single offence.

7. It is well known that for small quantities of heroin and ice which fall into the lower end of the scale in terms of sentencing, these attract proportionately higher sentences than for larger amounts. In the present case, for example, under the guidelines in R v Lau Tak-ming, (1990) 2 HKLR 370, the appropriate band for heroin weighing between 10 and 50 grammes is five to eight years' imprisonment. In respect of ice, under the guidelines in R v Ching Kwok-hung, (1991) 2 HKLR 125, for trafficking between 10 and 70 grammes, the sentence will range from seven to ten years' imprisonment.

8. There is, therefore, some merit in this appeal. The judge should, with the greatest respect to her, have added together the heroin in charges 1 and 2 in order to arrive at a proper tariff for all the heroin before any consideration of the ice. This would have left the sentence in the region of eight years as the appropriate starting point for a total of about 50 grammes in a normal case. Instead, her approach in looking separately at the amounts of heroin in charges 1 and 2 produced the artificial result of a combined starting point of twelve years and three months instead of about eight years as it should have been. This approach, of treating all the drugs of one kind as a single offence where they are found in similar circumstances to these, follows exactly the same principle adopted by a different division of this court in HKSAR v Luk Yun-shing, (unreported) CACC 357/98.

9. In respect of the ice in charge 2, the judge correctly took a starting point of seven years if that had stood by itself. However, because the judge, before considering totality, added the ice and heroin together in charge 2 to arrive at a starting point of thirteen years on that charge alone, the figure achieved was again an artificial one. This offended the principle set out in HKSAR v Ip Fat-yee, (unreported) CACC 118/97, where this court, again differently constituted, said that where different kinds of drugs are the subject of a single charge, while "wholly concurrent" sentences, as it was expressed in the judgment, would not be right, they should nevertheless be treated as one offence.

10. In the light of these errors in approach, we consider it is necessary to look afresh at sentencing in order to establish whether or not the sentence ultimately arrived at by the trial judge was manifestly excessive. Only if it was, would we interfere.

11. We consider, as we have already said, that the proper starting points under the normal guidelines for the heroin in charges 1 and 2 and the ice in charge 2 here were eight and seven years respectively. However, for the reasons we have already given, these effectively needed to be combined to form one and the same offence and had to be viewed in that global light for the purpose of achieving a just overall sentence. All the drugs were being trafficked at more or less the same place and at the same time. We think that a global sentence of about ten years, before taking into account the discount for pleas of guilty, would normally have been appropriate. That by itself would achieve a sentence, after plea and taking into account the discount, of six years and eight months. However, the matter does not end there and, in his helpful submissions, Mr. Alex Lee, for the Respondent, has very properly drawn to our attention two factors in aggravation of the offences at least so far as sentence is concerned, which it is clear the trial judge did have in her mind. Mr. Lee invited the court, in this context, to keep in mind what was stated in Chan Pui-chi, (unreported) CACC 706/97, when arriving at what the court concluded the proper sentence to be. This was to the effect, so far as that case is relevant to these proceedings, that a higher sentence may be imposed for drug trafficking than the guideline tariffs set out in R v Lau Tak-ming would generally indicate to be appropriate, bearing in mind the offender's "previous history of narcotic offences". That last phrase quoted comes from the judgment in Lau tak-ming where it is expressly stated that the court can properly take this factor into account when sentencing. Additionally, it is also well established that where an offence has been committed at a time when the offender is already on bail, this will be an aggravating factor.

12. Taking into account these gravely aggravating circumstances, we consider that the total of the Applicant's sentences, before taking into account his pleas of guilty, could well have been eleven years' imprisonment. Accordingly, it would be in our judgment wrong to interfere with the sentence of eight years, having regard to the judge's order that only seven years should run consecutively to the sentence the Applicant is presently serving.

13. We shall grant leave but, treating the hearing as the appeal, we dismiss it.