R. v. CHAN SHING HING

IN THE COURT OF APPEAL

1996, No. 725
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicant faced one count of trafficking before Saied, J in the High Court. It was alleged that on 11 April 1996 outside the USD Complex at No. 229 Electric Road, North Point, he unlawfully trafficked in a dangerous drug, namely, 29.86 grammes of a crystalline solid containing 29.86 grammes of what is commonly known as "ice". He was willing to plead guilty to possession. The trial proceeded on the trafficking charge and the jury returned a unanimous verdict of not guilty of trafficking but guilty of possession. He was sentenced to four years' imprisonment, half of which was ordered to run consecutively with the sentence he was then serving in another District Court case involving trafficking. He feels aggrieved and now seeks leave to appeal against sentence.

2. When sentencing the applicant, the judge used a starting point of five years. Because of his readiness to plead guilty to possession, the judge allowed him a 20% discount, thus reducing five years to four. The judge gave no indication as to how the starting point was selected; nor was any reason provided as to why only less than a third discount was allowed. The applicant was sentenced to four years for trafficking in another case on 1 November 1996. He was sentenced in this case by the judge on 4 December 1996. The close proximity of the two sentences was enough for the judge to invoke the totality principle. For that reason, the judge ordered two years of his four years' sentence to run consecutively with the four years sentence he was then serving. The total term of imprisonment he had to serve was, therefore, one of six years.

3. Mr Wong submits on behalf of the applicant, first, that the starting point of five years was much too high for simple possession. Counsel relies on the case of R v. Wu Chi Wai, Criminal Appeal No. 680 of 1995, the judgment of which was delivered by this court, differently constituted, on 11 June 1996. The second Ground of Appeal is that the applicant should have been allowed a one-third discount for his readiness to plead guilty to simple possession. Lastly, counsel submits that the judge failed to give full weight to the totality principle by ordering half of his four years' sentence to run consecutively with the term of imprisonment the applicant was then serving.

4. In the Wu Chi Wai case, the defendant was convicted of trafficking 59.39 grammes of a crystalline solid containing 56.12 grammes of "ice". This court, differently constituted, set aside the conviction of trafficking and the defendant was found guilty of simple possession of the same quantity of drug. The Court of Appeal paid regard to the high latent risk factor that the not insubstantial quantity of ice presented in the hands of an addict and that it might fall into other hands. The Court of Appeal also took into account the potent addictive nature of ice. The defendant in that case received two years' imprisonment from the Court of Appeal, on a full discount given to the applicant who would have been prepared to plead guilty to simple possession. It would seem that a starting point of three years must have been envisaged by the Court of Appeal in Wu Chi Wai. We cannot draw any real distinction between the circumstances in Wu Chi Wai case and those in the instant application, although bearing in mind the horrific nature of "ice", this court may well be called upon soon to review the appropriate sentencing range for simple possession of the substance.

5. Consequently, the five years' starting point adopted by the trial judge who was not referred to Wu Chi Wai would seem to be inappropriate. The starting point for simple possession in the instant application of a lesser quantity than that in Wu Chi Wai case should be three years. Little was said about allowing only a 20% discount to the applicant. In the circumstances, we are prepared to give the full advantage of a one-third discount for his willingness to plead guilty to simple possession.

6. Finally, we turn to the totality principle. It is a fact that the convictions on 1 November 1996 and that in the instant application on 4 December 1996 were close in time so as to require the judge to keep in mind the totality of sentence to be served by the applicant. That he did. We consider a starting point of three years as being appropriate. We give a third discount to the applicant, thus reducing it to a term of two years. As to the totality principle, it is always important to ensure the total term a defendant has to serve will not be disproportionate in the circumstances of the offences of which he has been convicted. Bearing in mind the factors which were taken into consideration by the Court of Appeal in Wu Chi Wai and which are also present in the instant application, we are unable to say under the totality principle that the total term of six years' imprisonment is, in any way, inappropriate or unjust. We grant leave and treat his application as the appeal proper. We, therefore, order that the four years' sentence imposed upon the applicant be set aside. We substitute a sentence of two years for simple possession of which he was convicted by the jury. We further order the two years' sentence for simple possession to run consecutively with the four years' sentence that the applicant is at present serving for his offence of trafficking. In effect, the applicant has to serve a total term of imprisonment of six years. In consequence, the total term regarded by the trial judge as appropriate is upheld.