THE QUEEN v. LAI SIK KEUNG

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J U D G M E N T

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Power, J.A.:

1. The applicant faced a charge of possession of dangerous drug for the purpose of unlawful trafficking, it being particularized that on the 27th of October 1988 in Tung Fat Road he had in his possession dangerous drugs namely 73.29 grammes of a mixture containing 3.66 grammes of salts of esters of morphine for the purpose of unlawful trafficking. He pleaded not guilty to that charge and was after trial found guilty of simple possession of that amount. He was sentenced to imprisonment for 18 months. This sentence was consecutive to two sentences which had been earlier imposed upon him, one of ten months on the 6th of December 1988 and one of two months on the 12th September 1988. The effect, therefore, was that he was, as from the 6th of December 1988, serving a sentence of imprisonment of two and a half years.

2. The facts are similar to those which one finds in many such cases. The applicant was intercepted by police officers. He was searched and the dangerous drugs were found in his left hand.

3. Mr. Grounds, who appears for the applicant, argues that the applicant had at all times been prepared to plead guilty to the lesser offence, that the trial judge failed to take into account the totality principle when sentencing and that he failed to give sufficient discount for the fact that these drugs were, on him own finding, intended by the applicant for his own use. We are unable to give weight to this last matter as it seems to us clear that the trial judge must have had in mind, given that he had just found the applicant not guilty of possession for trafficking but guilty only of simple possession, that these drugs were intended for his own use. Equally we are satisfied that no real weight can be given, indeed Mr. Grounds did not really pursue this ground, to the fact that the applicant would have pleaded guilty had be been originally charged with an offence of simple possession.

4. The question of the totality principle is one to which the judge did make reference in his Reasons for Sentence. These reasons are so brief as to provide almost no helps to this court. The judge did not express in any detail the reasons why he was imposing a sentence of 18 months. He simply said that he had the totality principle in mind when imposing sentence. His words were:

"Defendant already in prison - on totality principle consider 18 months' imprisonment right period - to run consecutively with present terms he is servings."

5. Some further elaboration of his reasons would have been both appropriate and of assistance to this court.

6. Leaving the "totality principle" aside for the moment, we turn to the matter upon which Mr. Grounds really relied. Was a sentence of 18 months excessive for an offence of this kind? A period of 9 months is the sentence which is usually considered appropriate when a person has been found guilty of simple possession. It is true that the applicant had a larger quantity of dangerous drugs in his possession in this instance than is normally found on a person carrying drugs for his own use. However, the real significance of the offence is not the amount of the drugs but that they were, whatever the amount, not for trafficking but for his own consumption. When assessing sentence the amount is not of the paramount importance that it is in trafficking charges.

7. We are satisfied that, had this offence stood alone, a sentence of 9 months would have been proper, i.e. the sort of sentence usually considered appropriate in cases of simple possession. We have given consideration to the submissions made by Mr. Grounds as to the totality principle but we do not consider that a totality of one year and nine months, i.e. the figure given by the addition of the sentence on this offence to those on the two earlier offences, is such as to require any variation of the sentence of nine months to a lesser period.

8. The hearing of the application will be treated as the hearing of the appeal. The appeal will be allowed and the sentence of 18 months consecutive will be varied to one of 9 months consecutive to the earlier sentences.