HKSAR v. CHAN PUI SZE

CACC 71/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 71 OF 2000

(ON APPEAL FROM HCCC NO. 396 OF 1999)

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J U D G M E N T

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Wong JA (giving the judgment of the court) :

1. The applicant, who is a young woman of 19 years of age, seeks leave to appeal against the sentences imposed on her in respect of two separate cases involving very large quantities of heroin.

2. The charges and the sentences to which this application relates arose in this way. On 28 April 1999, the applicant pleaded guilty before a magistrate to a charge of trafficking in 9,459.72 grammes of a mixture containing 5,799.09 grammes of heroin hydrochloride. On 9 July 1999, she appeared before Mrs Justice Bokhary in the Court of First Instance for sentence. The judge sentenced her to a term of imprisonment of 12 years, having reduced the sentence by more than 50% from a starting point of 26 years. In imposing the sentence that she did, the judge took into account of her early plea of guilty, her background, her age and in particular that she committed the offence under the bad influence of her boyfriend. The date of the commission of this offence was 14 November 1998.

3. In point of time, the other offence was committed on 24 September 1998. She was brought before a magistrate on 8 December 1999 when she pleaded guilty to a charge of trafficking in 1,773.68 grammes of a mixture containing 1,054.24 grammes of heroin hydrochloride. On 14 February 2000, Mrs Justice Bokhary sentenced her to imprisonment for 11 years, having reduced the sentence by about 47% from a starting point of 21 years. The judge again took the same mitigating factors into account but ordered this sentence to commence 3 years after the commencement of the sentence of 12 years she was serving in respect of the other offence. In effect, the applicant would serve a sentence of 14 years.

4. The facts of the first charge were these. On 14 November 1998, the applicant and her boyfriend, Lau Man-ho were arrested by Customs and Excise officers in Shatin. They were taken back to a flat in Shatin where they both lived and where the officers found 9,459.72 grammes of a mixture containing 5,799.09 grammes of heroin together with some paraphernalia. The applicant's fingernail clippings were found to have traces of heroin.

5. The second offence, which in fact took place earlier, involved 1,054.24 grammes of hereoin. It came to light after the police had arrested a man called Tang Kit-hung on 24 September 1998. He was found with nine blocks of dangerous drugs and from five blocks out of the nine blocks the fingerprints of the applicant were found. These five blocks had a total weight of 1,773.68 grammes which contained 1,054.24 grammes of heroin hydrochloride. The applicant was charged by the police on 5 October 1999, more than three months after she pleaded guilty on 9 July 1999 before Mrs Justice Bokhary in respect of the larger quantity.

6. In passing sentence on the second occasion, the judge had this to say :

"On 9 July 1999, you appeared before me for sentence having pleaded guilty in the Magistrates' Court to one offence of trafficking in dangerous drugs committed on 14 November 1998. I sentenced you to 12 years' imprisonment. Thereafter, you were charged with one offence of trafficking in dangerous drugs committed on 24 September 1998. You have pleaded guilty to this further charge in the Magistrates' Court and today you appear before me to be sentenced on that further charge.

The drugs, the subject matter of this further offence are 1,773.68 grammes of a mixture containing 1,054.24 grammes of heroin hydrochloride. For this further offence, I take a starting point of 21 years. The last time, I took into account not only your early plea but also your young age and the fact that you might well be under the influence of other, or others. I do the same thing again this time.

The sentence which I impose for this further offence is one of 11 years' imprisonment. Making this 11-year sentence wholly consecutive to the 12-year sentence which you are currently serving would involve excessive punishment. I will apply the principle of totality to avoid that. Making the sentences wholly concurrent will also be wrong because that would mean no punishment at all for the further offence which is, after all, a separate and serious offence. I will order that the sentence which I now impose commence three years after the commencement of the sentence passed on you on 9 July 1999. In doing that, I have taken into account not only the principle of totality but everything else urged on your behalf including the fact that you have apparently been making good progress towards rehabilitation in prison."

7. The only complaint in this appeal is that the sentence totalling 14 years' imprisonment is manifestly excessive in that the sentences imposed on the two offences should have been ordered to run concurrently and not partially concurrent and partially consecutive. It was argued that had the applicant been charged with the two offences and tried together, the sentences would inevitably have been ordered to run concurrently.

8. I totally disagree with this submission. The two offences were committed on different dates and at different places. They were separate and distinct offences as the judge recognised. Even if the applicant had been charged on the same indictment and tried together, the judge would be perfectly entitled to pass consecutive sentences provided she bore in mind the principle of totality. The judge made it clear in her sentencing remarks that she had to impose a partial consecutive sentence because of the totality principle. The heroin involved in the two charges weighed nearly 7 kilogrammes and in line with previous decisions of this court a starting point of 26-28 years' imprisonment would be entirely proper. Even on the first charge alone, taking the starting point of 26 years as the judge did, the sentence should be 17 years' imprisonment after allowing a discount of one third for plea. But the judge went far beyond that by reducing the sentence by more than 50% to 12 years. The judge had taken into full account all the factors that were in favour of the applicant.

9. The sentence of 14 years' imprisonment imposed by the judge for nearly 7 kilogrammes of heroin cannot be on any view be regarded as excessive, in whichever way one looks at it. The judge was extremely merciful and passed a sentence that probably did not quite fit the crime. If there is any criticism of the judge, it can only be said that she was far too merciful and over generous.

10. There is no substance whatsoever in the complaint. I do however agree that the judge's order does not clearly reflect her intention. In the circumstances, I would alter the order in terms of the formula adopted by Stock JA.

Keith JA:

Introduction

11. I regret that I have reached a different conclusion about the outcome of this application for leave to appeal, but I wish to comment first on the formula which the judge used to achieve her aim of passing on the Applicant a sentence of imprisonment which increased the overall sentence which the Applicant would have to serve.

The effect of the sentence passed

12. The formula which the judge used to achieve that end was to order the sentence of 11 years' imprisonment which she was imposing to commence 3 years after the commencement of the sentence of 12 years' imprisonment which had been passed on 9 July 1999. That formula was one which has been expressly sanctioned by section 68 of the Criminal Procedure Ordinance (Cap. 221), which provides:

"Where the court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or is at the same time .... sentenced to undergo, imprisonment for another offence, it shall be lawful for the court to direct that such imprisonment shall commence at any time during or at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo, as aforesaid."

13. The effect of the judge's order is that the Applicant will commence serving the sentence of 11 years' imprisonment on 9 July 2002. Assuming that she earns full remission, she will be released 88 months after 9 July 2002, i.e. on 9 November 2009. Give or take a few days, that is the date which the prison authorities have told her is her release date. However, the Applicant has been in custody since her arrest on 14 November 1998 for the offence for which the sentence of 12 years' imprisonment was passed. She will therefore have spent, give or take a few days, a total of 11 years in prison for the two offences. 11 years' imprisonment after remission is equivalent to 16 1/2 years' imprisonment before remission. Accordingly, the effect of the judge's order was to impose an overall sentence of 16 1/2 years' imprisonment.

14. The question therefore arises whether the judge really intended to pass an overall sentence of 16 1/2 years' imprisonment on the Applicant. When this application for leave to appeal was first heard last year, Mr Paul Madigan for the prosecution submitted that the judge had not intended to pass an overall sentence which had that effect. The judge's reference to the Applicant's latter sentence commencing 3 years after the first, combined with the difference of one year between the two sentences, showed that the sentence which the judge had intended to pass was an additional sentence of 2 years' imprisonment. Thus, he contended that the overall sentence which the judge had intended to pass was one of 14 years' imprisonment. Assuming that the Applicant earns full remission, she would, on that supposition, have to serve a total of 9 years' and 4 months' imprisonment, and her release date would be 14 March 2008. Ms Mary Sin who now appears for the prosecution agrees: indeed, her skeleton argument actually described the overall sentence which the judge had imposed as one of 14 years' imprisonment.

15. Thus, it is possible to reach two different results, with two different release dates, depending upon what conclusion is reached as to the length of the overall sentence which the judge intended to pass. I am inclined to think that the overall sentence which the judge intended to pass was what Mr Madigan suggested at the earlier hearing. The judge plainly wanted to distinguish between the Applicant and her boyfriend. That can be seen from the judge's process of reasoning when she imposed the sentence of 12 years' imprisonment on the Applicant on 9 July 1999. In view of the huge amount of drugs involved, she had taken as a starting-point a figure substantially in excess of 20 years' imprisonment, i.e. 26 years' imprisonment. However, she discounted it to 12 years' to reflect (a) the Applicant's plea of guilty, (b) her relative youth (she had been only 18 at the time of the offence) and (c) the malign influence of her boyfriend. Since the overall sentence which the judge passed on the Applicant's boyfriend was one of 18 years' imprisonment (for offences which included not only trafficking in large quantities of heroin at the end of 1998 but also trafficking in a huge quantity of ice earlier in the year), she is likely to have been intending to pass an overall sentence of significantly less that 16 1/2 years' imprisonment on the Applicant.

16. But even if she had not been intending to do that, since there is no sure way of ascertaining what the judge intended (because she did not state the overall sentence which she was intending to impose), the judge should, in the interests of fairness to the Applicant, be treated as having intended to pass the sentence most favourable to the Applicant, especially since the prosecution contend that the judge intended to pass an overall sentence of 14 years' imprisonment. Upon the assumption that the judge's intention was to impose an overall sentence of 14 years' imprisonment, and upon the further assumption that such a sentence was appropriate, how should the sentence which the judge passed be varied to give effect to that intention? The answer is to set aside the order which the judge made as to when the Applicant should commence serving the sentence of 11 years' imprisonment, and to order the Applicant to serve 9 years of the sentence of 11 years' imprisonment concurrently with the sentence of 12 years' imprisonment, and to serve 2 years of the sentence of 11 years' imprisonment consecutively to the sentence of 12 years' imprisonment.

17. An order of that kind is consistent with the device conventionally used to achieve the judge's undoubted aim of requiring the Applicant to serve a term of imprisonment additional to the one which she was serving but not to serve the whole of that new term: that device is to require the latter sentence to be served partly concurrently with, and partly consecutively to, the earlier sentence. If a judge, however, chooses to use the formula which the judge used in the present case, he should state the overall sentence which he is intending to impose. In that way, the court will be able to see whether the date on which the latter sentence is to commence accurately reflects the overall sentence which the judge intended to pass.

The appropriateness of a partly consecutive sentence

18. The narcotic content of the heroin in the two separate indictments which the Applicant faced amounted to 6.853 kgs. Such a large amount justified a starting-point for sentence in excess of 20 years' imprisonment. Thus, a total sentence of 14 years' imprisonment, which reflected her pleas of guilty and the other mitigating factors relied upon, could not be said to be excessive. On what basis, then, could it be said that a wholly concurrent sentence should nevertheless have been passed? To answer that question, it is necessary to look at the facts relating to each offence, and to see how the Applicant's boyfriend was treated.

19. The facts relating to the offence for which the Applicant was sentenced to 12 years' imprisonment on 9 July 1999 were that a mixture containing 5.799 kgs. of heroin was found on 14 November 1998 in a flat in Sha Tin where she lived with her boyfriend. Clippings from her fingernails were found to contain traces of heroin, but what principally linked her to the large quantity of heroin found in the flat was the presence of her fingerprint on the adhesive tape in which the heroin was wrapped. Her plea of guilty to trafficking in that heroin was tendered on the basis that it was her boyfriend who had got the heroin, and she had simply helped him to pack it. There was nothing to contradict the basis on which her plea of guilty had been tendered.

20. The facts relating to the offence for which she was sentenced to 11 years' imprisonment on 14 February 2000 were that nine blocks of a mixture containing 1.852 kgs. of heroin were found on 24 September 1998 (i.e. about seven weeks earlier) in the car of a man who was arrested as he was driving out of a car park in Ngau Tau Kok. The only link between the Applicant and that heroin was that her fingerprints were found on the adhesive tape in which five of the blocks of heroin were wrapped. The narcotic content of the mixture containing that heroin was 1.054 kgs. Her plea of guilty to trafficking in that heroin was tendered on the basis that the blocks of heroin which had her fingerprints on them had been part of the heroin which she had been helping her boyfriend to pack. Again, there was nothing to contradict the basis on which her plea of guilty had been tendered.

21. Thus, what she had to be punished for was a single course of conduct - perhaps over a number of weeks but maybe on one occasion only - namely helping her boyfriend to pack heroin which he had got, and that course of conduct encompassed both the heroin found in the car and the heroin found in the flat 7 weeks later. Although her packing of the heroin found in the car and the heroin found in the flat technically constituted separate offences, the reality is that it was her course of conduct for which she had to be sentenced.

22. In the normal course of events, the Applicant's two offences would have been dealt with together. Why were they not heard together? Ms Sin was unable to help. The Applicant's fingerprints had been taken on 14 November 1998 following the finding of the heroin in the flat. Ms Sin could not tell us why they were not matched for almost a year to the fingerprints found on the blocks of heroin in the car on 24 September 1998. She told us that it was not until October 1999 that the match was made, which was when the Applicant, having been sentenced a few months earlier to 12 years' imprisonment, was suddenly confronted with another charge of trafficking. A mitigating factor, therefore, when she came to be sentenced in February 2000 for trafficking in the heroin found in the car was that she had had to undergo a further period of worry and uncertainty, which would have been avoided if the match between her fingerprints and the fingerprints found on the blocks of heroin in the car had been made earlier so that she could have been sentenced for both offences on 9 July 1999. In addition, a mitigating factor to be taken into account by this court is the additional worry which she has had to cope with arising out of her concern that she had been given an incorrect release date and that that error might go uncorrected.

23. In my opinion, the critical question which has to be asked is what overall sentence would the judge have imposed if the Applicant's two offences had been dealt with together. That is because it is well established that where a defendant has already been sentenced for an offence, the sentencing court should approach the question of sentence as if the two cases had been heard together: R. v. Tong Hoi Fung [1988] 1 HKLR 610, as explained in Cross & Cheung, "Sentencing in Hong Kong", 3rd ed., p. 457. It is here that the sentence which had been imposed on the Applicant's boyfriend becomes important. Ms Sin was asked at the hearing what sentence had been passed on him. She told us that he had been sentenced to 18 years' imprisonment, but she subsequently informed us that that had been incorrect. He had on 9 July 1999 been sentenced to 14 years' and 15 years' imprisonment for two offences of trafficking in heroin, those sentences to be served concurrently with each other. Those offences related to (a) 12 blocks of a mixture containing 2.568 kgs. of heroin which he had had with him in the street when he and the Applicant had been arrested on 14 November 1998, and (b) the mixture containing 5.799 kgs. of heroin found in the flat in Sha Tin (the latter offence being the offence for which the Applicant had also been sentenced on 9 July 1999).

24. But when we called for the papers in the boyfriend's case, we saw that they revealed that he had also been sentenced on 9 July 1999 to 18 years' imprisonment, to be served concurrently with the other two terms of imprisonment, for an offence of trafficking on 23 May 1998 in (a) a mixture containing 773 gms. of heroin and (b) a crystalline solid containing 5.898 kgs. of ice. They had been found in his previous flat in Tuen Mun. The crucial point is that he was sentenced for all three offences on the same occasion, and received concurrent sentences of imprisonment for all three, even though the offence for which he was sentenced to 18 years' imprisonment was a separate offence from the offences for which he was sentenced to 14 years' and 15 years' imprisonment, and had been committed on a completely separate occasion.

25. Before sentencing the Applicant on 14 February 2000, the judge reminded herself of how the Applicant had been sentenced on 9 July 1999. But crucially the judge did not remind herself of how she had sentenced the Applicant's boyfriend. If she had reminded herself of that, two things would, I think, have struck her. First, to impose a partly consecutive sentence on the Applicant would have been in stark contrast to the sentences imposed on her boyfriend, all of which were to be served concurrently with each other. Secondly, to impose a sentence which had the effect of requiring the Applicant to serve an overall sentence of 14 years' imprisonment would not have sufficiently reflected the real differences between her and her boyfriend. Those differences were (a) the differences between the offences which they each committed, bearing in mind in her boyfriend's case the much larger quantities of drugs involved, the different types of drugs, the different times and places where his offences were committed and his significantly greater involvement in the narcotics trade, and (b) the Applicant's strong personal mitigation which, apart from their pleas of guilty, was not available to him. That personal mitigation had been regarded by the judge on 9 July 1999 as sufficient to justify reducing a starting-point of 26 years' imprisonment to 12 years' imprisonment. In short, had the judge reminded herself of how she had sentenced the Applicant's boyfriend, and what she had sentenced him for, I do not think that the judge would have increased the overall sentence which the Applicant would have to serve.

26. That can be tested in this way. Let us assume that the judge had been sentencing the Applicant at the same time for both offences. If 26 years' imprisonment had been the appropriate starting-point for the Applicant's trafficking in 5.799 kgs. of heroin, it may well be that the judge would not have taken a greater starting-point for trafficking in 6.853 kgs. Equally, if 12 years' imprisonment had been the appropriate sentence for the Applicant's trafficking in 5.799 kgs., it may well be that the judge would not have imposed a longer sentence for trafficking in 6.853 kgs. All the more so if at the same time the judge had been sentencing the Applicant's boyfriend as well.

Conclusion

27. For these reasons, therefore, I have concluded that the sentence of 11 years' imprisonment should be a wholly concurrent one - not because the overall sentence of 14 years' imprisonment was excessive, but because an overall sentence of 12 years' imprisonment is the sentence which the judge would in all probability have passed if she had been sentencing the Applicant at the same time as her boyfriend for both of the offences which she had committed. I would therefore grant the Applicant leave to appeal against her sentence, I would allow the appeal, and I would order that the sentence of 11 years' imprisonment be served concurrently with the sentence of 12 years' imprisonment.

Stock JA :

28. I agree that the applicant should be given leave to appeal against sentence, and that her appeal should be allowed to the extent that there should be substituted a term which assumes a totality of 14 years' imprisonment; but I do not agree with Keith JA that the sentence should be reduced so as to make a totality of 12 years' imprisonment. That would mean a discount of 54% from a wholly acceptable starting point of 26 years, in the face of what is now accepted to have been a course of conduct, rather than a single offence. I do not think that such a reduction can, in all the circumstances, be justified. Since I respectfully disagree, in part, with the approach and conclusions of Keith JA, I should state my reasons for that disagreement.

29. It is not entirely clear that the judge in fact intended a totality of 14 years. Nowhere does she say so; and where a judge uses the formula, for which there is express authority under section 68 of the Criminal Procedure Ordinance, namely, to order a sentence to run form a future date, we should I think be slow to assume that the judge intended something else. I am in this case however persuaded by two facts to say that the totality should not be more than 14 years:

(1) the fact that a totality greater than 14 years would result in a sentence which would indeed draw very little distinction as between the overall criminality of the boyfriend and that of the defendant, and there can be no question but that some meaningful distinction should be made; and

(2) that both counsel who have appeared for the prosecution on this appeal have asserted that a fourteen year total was intended.

30. I accept that the sentence in fact imposed is, in its effect, longer than a sentence of 14 years. I do not think it necessary to debate whether its effect is a term of 15 1/2 years, as the applicant herself contends, or 16 1/2 years as has been suggested by Keith JA.

31. The remaining question is whether this court would be justified in reducing the term further by running the two sentences concurrently, so as to make a total of twelve years.

32. I accept that the imposition of partly consecutive sentences contrasts with the approach adopted when sentences were imposed on the boyfriend, in that his sentences were ordered to run concurrently. However, the passing of a partly consecutive sentence on the applicant is a product of the fact that the applicant, unlike the boyfriend, appeared for sentence on two occasions and that when she appeared on the second occasion, the extent of her criminality, as then revealed to the judge, was greater than on the first occasion. We should not assume that had the applicant appeared on the first occasion on both charges, the judge would not have imposed concurrent sentences. The question is whether a greater totality than that in fact adopted on the first occasion would have been warranted.

33. I accept, too, that where a defendant is charged and sentenced in respect of two or more offences that constitute a single course of conduct, it is appropriate to pass sentences which are concurrent. That said, it cannot, I think, be gainsaid that a course of criminal conduct will, generally speaking, warrant an overall sentence higher than that warranted by a single offence. Yet the fact is that when the judge sentenced on the first occasion she was proceeding on a footing of one offence only, and not on the basis of a course of conduct which included two proved offences weeks apart, each involving very substantial quantities of drugs.

34. Quite what had happened factually one does not know. Despite the mitigating factor of the pleas of guilty, the applicant had said nothing to the police upon questioning for the offences. It is always possible in such a case that the drugs found in the flat in November had been packed by her at the same time as those seized in September; but that was not suggested in mitigation, and one notes that in July 1999 the suggestion emanating from defence counsel contradicted any suggestion of an isolated incident. On the second occasion, the judge was not sentencing for the same factual scenario with which she had been presented in July 1999. The facts of the two cases, when put together, show that in September 1998 the applicant had packed 5 packets with over 1 kilo of heroin; and some two months or so later, the applicant was residing in a flat awash with trafficking paraphernalia, where there was found a very large quantity of drugs handled by her, which were not the drugs seized on the earlier occasion. Whether one calls what happened in the summer of 1998 a course of conduct or separate offences, what the judge had to address in February 2000, the second sentencing date, was culpability different from that which she addressed in July 1999.

35. I accept, further, that we should in this case pay particular attention to the question of any suggested disparity between the sentence ultimately visited upon the applicant and that imposed upon the boyfriend. I note, as well, that when the judge sentenced in February 2000 she did not mention the sentences imposed upon the boyfriend. That does not necessarily mean that she did not have them in mind, for it is noteworthy that the judge adjourned the case to call for the case file so that she could remind herself of the facts. Whether the file which she saw was one that recorded the sentences passed on the boyfriend, I do not know, though it is apparent that she had in mind the fact that there had been a more culpable boyfriend.

36. Be that as it may, at the end of the day, I am satisfied that there is not an objectionable disparity. The fact is that the boyfriend received a sentence well in excess of 14 years. It is true that his criminality was significantly greater, given the fact of a particularly serious trafficking offence in May 1998. But it cannot follow automatically from that, and from the possibility that she was "to some extent acting under his influence" (which is how the point was put by the judge when sentencing in 1999), that one then reduces her sentence by some fixed proportion from his, ignoring other factors peculiar to the case. On the facts of this particular case, one has to recognise that there was a ceiling to the sentence which could properly be imposed on the boyfriend. Although the boyfriend had trafficked in much greater quantities than had the applicant, the judge could not on any view have taken a starting point of more than 27 years in his case, nor impose a sentence after plea of more than 18 years. That is one factor. At the same time, the sentence imposed on the applicant had to bear some correlation to the criminality disclosed by the applicant's conduct. So, making the point by an extreme example, if the boyfriend had had twice the quantity of drugs, and had trafficked twice as often, as the applicant, but the maximum conscionable sentence for him was 18 years' imprisonment (because no matter how large the quantity there comes a time when upward progression of sentence must stop), a sentence of half that term for the girl to give effect to suggested differences between the two would have nonetheless been manifestly inadequate for the crime which she had committed, mitigation notwithstanding. And I am of the view that a discount of over 50% in the applicant's sentence, which would be the effect of a twelve year term, does not adequately reflect her criminality, mitigation notwithstanding; whilst a sentence of 14 years' imprisonment, which is a discount of 46%, from the appropriate starting point gives ample effect to the mitigation.

37. It is worth making one or two further points in relation to the mitigation which is said to be available to the applicant. One notes that the applicant refused to answer any questions when interviewed after her arrest in November 1998. Furthermore, the premises that were rented for the storage of drugs, and in which premises were, as was admitted by the applicant, kept the paraphernalia of trafficking (and indeed of manufacture), were premises rented by a friend of the applicant on the request of the applicant and her boyfriend. So much was admitted by the applicant upon her appearance before the judge. These, too, are facts which must be placed in the balance, and in my judgment, when all the facts are placed in that balance, the sentence of 14 years which it is said that the judge intended to impose, was the appropriate sentence.

38. I would accordingly grant the applicant leave to appeal against sentence, treat the hearing of the application as the hearing of the appeal, set aside the sentence imposed by the judge on 14 February 2000 to the extent of ordering the applicant to serve 9 years of the 11 year term concurrently with the term of 12 years' imprisonment imposed in July 1999, and to serve two years of the 11 year term consecutively to the sentence of 12 years.

Wong JA :

39. In the result, the court would grant the applicant leave to appeal against sentence, treating the hearing of the application as the hearing of the appeal, allowing the appeal and as a result of the view of the majority, sets aside the sentence imposed by the judge on 14 February 2000 to the extent of ordering the applicant to serve 9 years of the 11 year term concurrently with the term of 12 years' imprisonment imposed in July 1999, and to serve 2 years of the 11 year term consecutively to the sentence of 12 years. This will give effect to a sentence of imprisonment totalling 14 years as the judge had intended to impose.