R. v. LEE BING CHIU

IN THE COURT OF APPEAL

No. 654 of 1995

(Criminal)

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J U D G M E N T

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Keith J. (giving the judgment of the Court):

1. On 19th September 1995, the Applicant pleaded guilty in the District Court to 3 charges of trafficking in heroin. He was subsequently sentenced by Judge Beeson to terms of imprisonment totalling 3½ years' imprisonment in all. He now applies for leave to appeal against those sentences.

2. The Applicant was seen by police officers obtaining a number of small packets of heroin from another man in the vicinity of a methadone centre. He was then seen to sell them to drug addicts in the centre. It was the sale of the heroin to drug addicts in the centre to which charge 1 related. When the Applicant was arrested, he confirmed that he had been selling heroin to addicts in the centre. He claimed that he had sold each packet for $120.00, and had made a profit of only $20.00 on each deal.

3. Two particular drug addicts were seen purchasing heroin from the Applicant. They were stopped by police officers as they left the centre. Each of them was found to be in possession of a packet of heroin. In one case, the contents of the packet were found on analysis to be 0.39 gms. of a mixture containing 0.07 gms. of heroin. In the other, the contents of the packet were found on analysis to be 0.37 gms. of a mixture containing 0.07 gms. of heroin. Charges 2 and 3 related to the sale of these two packets of heroin.

4. The judge took 3 years' imprisonment as the starting point for each of the 3 charges. She discounted each of them by 12 months to reflect the Applicant's pleas of guilty. If those sentences were to be served consecutively, the sentences would have totalled 6 years. The judge took the view that that would result in the Applicant being sent to prison for too long. She therefore applied the totality principle, and reduced the sentences to one of 2 years' imprisonment on the first charge, and to 9 months' imprisonment on each of the second and third charges, all those sentences to run consecutively to each other.

5. In our view, the only criticism which can fairly be levelled at the sentences is that the sentences should have been concurrent with each other. The offences to which charges 2 and 3 related were simply examples of the sale of packets of heroin to drug addicts to which charge 1 related. Having taken instructions from the officer in charge of the case, Mr. John Reading for the Crown confirmed to us that that was so. The trafficking in drugs to which charge 1 related thus included the deals covered by charges 2 and 3. It was, therefore, wrong in principle for consecutive sentences to be imposed. The Applicant was being sentenced more than once for trafficking in the drugs to which charge 1 related.

6. The other criticisms levelled at the judge relate to the sentence imposed on charge 1. It is claimed that the judge took too long a starting point, and that she gave the Applicant insufficient credit for his plea of guilty. We unhesitatingly reject those complaints. We do not know the number of deals which the Applicant made, but he was being kept under observation for a period of 3 hours, and it is plain that the deals to which charges 2 and 3 related were not the only deals he made. For example, he was seen to inject one addict with the heroin which the addict had just bought from him. Although the individual deals were small - involving as they did no more than a single fix - what the Applicant was doing was cynically targetting addicts who were either attempting to wean themselves off heroin, or attempting to control their addiction, by attending at a clinic which dispensed a heroin substitute. In our judgment, a starting point of 3 years' imprisonment was entirely appropriate, and since the Applicant had no real alternative but to plead guilty (because the police had recorded what he had done on video), the Applicant could not seriously have expected the discount for his plea of guilty to be in excess of one-third.

7. We should add that a starting point of 3 years' imprisonment accords with the guidelines laid down in Lau Tak Ming [1990] 2 HKLR 370. Trafficking in up to 10 gms. of heroin might attract a sentence after trial of 2-5 years' imprisonment. Since the packets of heroin which the Applicant sold had a narcotic content of only 0.07 gms., the Applicant would have to have sold over 140 packets to reach the 10 gms. mark. We do not suppose that he sold anything like that number. But even if he had sold no more than 10 packets, the starting point had to have been some way up the scale to reflect what the judge correctly identified as the aggravating features.

8. For these reasons, the application for leave to appeal against sentence is granted. We treat the hearing of the application as the hearing of the appeal, and we direct that the sentences of 9 months' imprisonment on charges 2 and 3 be served concurrently with each other and concurrently with the sentence of 2 years' imprisonment on charge 1. To that extent, this appeal must be allowed.