HKSAR v. TSANG HIN CHUNG

CACC 113/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 113 OF 2004

(ON APPEAL FROM DCCC NO. 75 OF 2004)

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J U D G M E N T

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1. On 1 March 2004, the applicant was convicted on his own plea of 3 charges before Judge Yuen in the District Court. Charge 1 and Charge 2 were both for trafficking in a dangerous drug involving respectively 0.32 grammes and 7.16 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Charge 3 was for keeping a divan, contrary to section 35(1)(a) and (2) of the same Ordinance.

2. The offences were all committed by the applicant on 21 February 2003 when they were uncovered by a police undercover operation. Two undercover police officers were able to get into premises in Yaumatei, where the applicant sold the drugs, the subject of Charge 1, to them. The police raid that followed found the drugs under Charge 2 in the premises.

3. In sentencing, the judge apparently followed the tariff laid down R v Lau Tak-ming [1990] 2 HKLR 370, which was 2-5 years' imprisonment for a quantity of up to 10 grammes of heroin, to adopt a starting point of 2 years for Charge 1 and 50 months for Charge 2. He also considered HKSAR v Ng Ka Wing, Kevin, CACC 563/1999, in adopting a starting point of 2 years for Charge 3. After reducing the sentences by one-third to take into account the guilty plea, the judge imposed the sentence of 16 months for Charge 1, 33 months for Charge 2 and 16 months for Charge 3. Considering totality, the judge made 18 months out of the 33 months for Charge 2 and 8 months out of the 16 months from Charge 3, consecutive to the sentence for Charge 1, ordering the rest of the sentences to run concurrently. The resulting sentence totalled 42 months, or 3 years and 6 months.

4. The applicant now seeks leave to appeal against sentence for the reason that the sentence is too heavy.

5. For the offence of trafficking in dangerous drugs, where multiple offences related to one defendant, and the drugs involved were found at the same incident or same series of incident, it is only fair in sentencing to consider the total quantity of the drugs involved in the various offences when adopting an appropriate starting point. See HKSAR v Chan Pui-chi [1999] 2HKLRD 830, at 832E-F and HKSAR v Chow Yu-chi, CACC 359/2000, p 3A-M. Here the 0.32 grammes under Charge 1 should properly be considered together with 7.16 grammes under Charge 2. The result is that the total quantity involved was 7.48 grammes. This method is particularly apt for the present offences committed by the applicant, because he was the person keeping the divan under Charge 3 as well as selling the drugs under Charge 1 and keeping the drugs under Charge 2 in the same divan.

6. While keeping the divan was properly considered to be a separate offence and should be punished separately, it may be argued that the judge in dealing with Charges 1 and 2 to make a sizable period of the sentences to run consecutively may be considered to have erred in principle.

7. However, Ms Cheung, for the respondent, has pointed out that while the judge had not adopted the suggested approach in sentencing the applicant for Charges 1 and 2, this Court should not interfere insofar as the sentence passed is a proper one. This is in accordance with Chow Yu-chi where the Court stated at p 3M:

"A failure to follow the suggested route to sentence [ie combining the weight of the narcotics in multiple drug offences] will not avail a prisoner if the sentence at which the court ultimately arrives is a proper one ..."

8. The total quantity involved in Charges 1 and 2 came to 7.48 grammes of heroin. A starting point of 50 months' imprisonment is not at all excessive, and after the reduction by one-third for the applicant's guilty plea, the sentence for the two charges would be about 33.33 months, which is very close to the total sentences of 34 months passed by the judge for the two charges.

9. Regarding Charge 3, keeping a divan, the sentence could range from 1 to 2 years' imprisonment. See HKSAR v Ho Sai-chak, HCMA 780/1999, HKSAR v Ng Ka-wing, Kevin, CACC 563/1999, HKSAR v Cheung Kung-hang, CACC 459/2000 and HKSAR v Lam Lai-chu, CACC 56/2003. The judge's adopting 2 years as the starting point cannot be said to be manifestly excessive. Moreover, this was a separate and distinct offence from Charges 1 and 2. The judge's making 8 months out of the sentence of 16 months for Charge 3 consecutive to the sentences for the first two charges cannot be said to result in a manifestly excessive sentence either, even after taking into consideration the principle of totality.

10. In the circumstances, I consider that there is no valid ground of appeal and I dismiss the application for leave to appeal against sentence accordingly.