HKSAR v. LO CHUNG YIN

CAC C 470/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 470 OF 2010

(ON APPEAL FROM DCCC NO. 1028 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On 9 December 2010, the appellant appeared before Deputy District Judge Chainrai in the District Court in order to be sentenced for three criminal offences to which on an earlier date he had pleaded guilty.  The first charge to which he had pleaded guilty was one of possession of a forged identity card, contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177.  The second charge was one of trafficking in a dangerous drug, contrary to s. (1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, the drug being 2.7 g of a solid containing 2.04 g of cocaine.  The third charge was also one of trafficking in dangerous drugs, namely, 50.94 g of a solid containing 31.82 g of cocaine and 100 tablets containing 0.69 g of nimetazepam.

2.  The judge imposed the following sentences.  In respect of the first charge, that of possession of a forged identity card, a sentence of 12 months’ imprisonment.  In respect of the second and third charges, those of trafficking in dangerous drugs, sentences of 20 months and 4 years respectively.

3.  The judge ordered that the sentences for the two drug trafficking charges be served concurrently but that the sentence imposed in respect of the first charge be served consecutively with the two drug-trafficking sentences.

4.  This made for a total sentence of 5 years’ imprisonment.

5.  Having been granted leave, the appellant appealed that sentence.  He did so on the basis that the sentence of five years’ imprisonment was manifestly excessive, the judge having failed to take into account adequately, or at all, the totality of the appellant’s culpability.

6.  Having heard submissions, we allowed the appeal, reducing the sentence by 6 months to one of 4 years and 6 months’ imprisonment.  We gave effect to this by ordering that 3 years and 6 months only of the 4-year sentence imposed in respect of Charge 3 be served consecutively with the sentence of 12 months imposed in respect of Charge 1.

7.  We said that we would give our reasons later.  We do so now.

Background

8.  On 21 June 2010, the appellant was stopped by police.

9.  At the time of his arrest he was already wanted by the police, having failed to answer his police bail in respect of two offences; first, an offence of driving whilst disqualified and, second, using a motor vehicle on a road without third-party insurance.

10.  The appellant was searched and found to be in possession of a forged identity card.  The appellant said that he had purchased the card because, being wanted by the police, he hoped to be able to use it to avoid detection.  This was the subject of the first charge on the indictment.

11.  The appellant was also found in possession of 10 packets containing what is commonly called ‘crack cocaine’, the total narcotic content weighing 2.04 g.  This was the subject of the second charge.

12.  The appellant was then taken to his premises where a search was conducted.  In the course of that search a further 181 packets containing ‘crack cocaine’ were found, the total narcotic content weighing 31.82 g.  In addition, 100 tablets of nimetazepam were found wrapped in tin foil.  This was the subject of the third charge.

13.  It was agreed that the total street value of the dangerous drugs found on the applicant and in his premises was HK$83,000.

14.  When the appellant appeared before Deputy Judge Chainrai for sentencing, he was at that time serving a sentence of 6 months’ imprisonment imposed on him for the offences in respect of which he had failed to answer his police bail, that is, driving whilst disqualified and using a motor vehicle on a road without third-party insurance.

15.  The judge observed that the appellant, although not yet 30 years of age, had a bad criminal record.  He had previous convictions for assaulting a police officer, going equipped for stealing, conspiring to commit burglary, robbery and a number of offences of driving whilst disqualified.

The judge’s assessment of the individual sentences

16.  Mr Robert Pang, who appeared on behalf of the appellant, took no issue with the correctness of the judge’s assessment of sentence in respect of each individual charge.

17.  In respect of Charge 1, possession of a forged identity card, the judge imposed a sentence of 12 months’ imprisonment.  This was squarely in line with earlier judgments of this Court to the effect that, in order to reflect the seriousness of the offence and to serve a deterrent purpose, a sentence of that length was appropriate after a plea of guilty: see HKSAR v Li Chang Li [2005] 1 HKLRD 865 and HKSAR v Ho Chak Ming (unreported) CACC 316/2009.

18.  In respect of Charge 2, that of trafficking in 2.04 g of cocaine, the judge took a starting point of 30 months, reducing it to 20 months (one year and eight months) by reason of the appellant’s guilty plea.

19.  In respect of Charge 3, that of trafficking in 31.82 g of cocaine and 100 tablets of nimetazepam, the judge took a starting point of 6 years, the one-third discount reducing it to 4 years’ imprisonment.

The issue of totality

20.  If an accused is convicted of more than one offence, he will be sentenced in respect of each.  However, in the process of imposing more than one sentence, the court must ensure that the effect of the overall sentence reflects the true culpability of the accused.  In the present case, the judge was aware of the requirement that the overall sentence must reflect the culpability of the appellant.  In her Reasons for Sentence she said:

“I do bear in mind that the Defendant is presently serving a term of 6 months’ imprisonment. I do bear in mind the totality principle of sentence. The present offences were committed whilst he was on police bail for the driving offences. That must be viewed as an aggravating feature, warranting that the present sentences should be consecutive. The conduct in the offence on Count 1 is very different from that for Counts 2 and 3 and warrants consecutive sentences as well. But, bearing totality in mind, I order that the sentences in Counts 2 and 3 be concurrent but consecutive to that in Count 1, which would make a total of 5 years’ imprisonment, and this sentence is to be consecutive to the sentence he is presently serving.”

21.  It was Mr Pang’s principal submission that the judge, having turned her attention to the principle of totality and clearly wishing to give exercise to that principle, fell into error in the manner in which she did so.  He submitted that the judge fell into error by ordering that, in giving effect to the totality principle, the two sentences for drug trafficking should be served concurrently when the requirement for a concurrent sentence in respect of those two sentences fell under a different principle of law.  We agreed with that submission.

22.  Before us, there was no dispute that, in circumstances where the commission of offences of unlawfully trafficking in a dangerous drug by a single defendant is closely connected in time and facts, that, in imposing sentence it is appropriate for the judge to have regard to the overall narcotic content of those drugs.  [See HKSAR v Chan Pui Chi [1999] 2HKLRD 830 at 832E, cited with approval in HKSAR v Tsang Hin Chung (unreported) CACC 113/2004 at paragraph 5.]  This, however, the judge did not do.

23.  As we have said, the narcotic content of the cocaine in Charge 2 was 2.04 g and in Charge 3 it was 31.82 g: the total narcotic being 33.86 g.  In addition, particularised in Charge 3 was the unlawful trafficking in 100 tablets (0.69 g) of nimetazapan.  As the judge noted, the appropriate guideline set out in the judgment of this Court in the Attorney-General v Pedro Nel Rojas [1994] 1 HKC 342 for amounts of and between 10 and 50 g of cocaine is 5 to 8 years’ imprisonment.  The judge was acting within the margin of her discretion in taking a starting point of six years’ imprisonment for Charge 3.

24.  As Mr Pang submitted, given the intimate connection in time and factual link between the commission of the two offences alleged by Charges 2 and 3, concurrent sentences of imprisonment were called for.  In the event, that is the order the judge made.  However, she did not found her order on the basis that we have set out, that is, the requirement in the circumstances to have regard to the overall narcotic content, but rather did so on the basis that they fell within considerations of totality of sentence.

25.  In our view, the stated approach of the judge was wrong in principle.  In the result, it fell to this Court to approach the matter afresh.  Of course, as Mr Pang conceded, even if there has been an error in principle, this Court will not interfere in the overall sentence if it is not manifestly excessive.

26.  There was no dispute that it was appropriate that the sentences imposed for the three offences be made consecutive to the sentence of imprisonment that the applicant was already serving.  Similarly, no issue was taken with the overall sentence imposed in respect of Charges 2 and 3, namely 4 years’ imprisonment, or of the sentence of one year’s imprisonment in respect of Charge 1. At issue, was the single issue of whether the judge, in having regard to the principle of totality, ought to have determined to make part of the sentences imposed in respect of Charges 2 and 3 concurrent with the sentence imposed in respect of Charge 1.

27.  We were satisfied that, having regard to all the circumstances of this case, the overall sentence of five years’ imprisonment was manifestly excessive and that the overall culpability of the applicant was more appropriately reflected by a reduced sentence of 4 years and 6 months’ imprisonment.  Accordingly, we ordered that 3 years and 6 months only of the 4-year sentence imposed in respect of Charge 3 served consecutively to the sentence of imprisonment of one year imposed in respect of Charge 1.