HKSAR v. LEUNG CHI KEUNG

HCMA 1113/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1113 OF 2003

(ON APPEAL FROM KCCC 10493/2003)

____________

____________

(Heard Together)

_______________

J U D G M E N T

_______________

1. This appeal is in relation to an appeal against sentence by the Applicant, Mr Leung Chi Keung in HCMA 1113 and 1114 of 2003. The Appellant had pleaded guilty in HCMA 1113 to one charge of possession of dangerous drugs and one charge of failing to surrender to custody without reasonable cause.

2. In the first charge in HCMA 1113, the amount of the heroin found in his possession was 2.74 grammes of a mixture containing 2.29 grammes of heroin hydrochloride. The learned Magistrate took a starting point in that charge of 12 months and reduced it to 8 months' imprisonment because of his plea. And this as Ms Chan very properly submitted is in line with the case of HKSAR v. Wan Sheung Sum [2000] 1 HKLRD 405 and as for the 1 month's imprisonment in the 2nd charge, the learned Magistrate said that this one month will be consecutive to the sentence in the 1st charge.

3. In the case of HCMA 1114, the Appellant was charged with 3 charges, two charges of trafficking in a dangerous drug and one charge of keeping a divan. The total amount of heroin in the first two charges comes to 2.58 grammes of heroin hydrochloride.

4. The facts in this case are that police officers posing as customers went to a flat in Temple Street where the Appellant opened the door to them. The Appellant offered to sell heroin to them at the cost of $200.00. When the undercover police officers revealed their identity, the Appellant admitted that he was the person in charge of that divan.

5. 16 other persons were also present at the premises and they all said they had bought and consumed heroin there. The drugs in the charge were found on these premises together with consuming apparatus and packaging paraphernalia and a notebook containing a record of transactions, was also found. The Appellant had admitted to the police that he was the keeper and had trafficked in heroin at the said premises and that the notebook was to keep the business record.

6. The learned Magistrate after considering the facts in the case decided that an appropriate starting point for each of the three charges would be 3 years' imprisonment reduced to 2 for the plea. In those circumstances, the learned Magistrate correctly made each of them concurrent. So at the end of the day, the learned Magistrate then made the sentence of two years in HCMA 1114 consecutive to HCMA 1113.

7. The learned Magistrate had also been informed that the Appellant had 18 previous convictions, 11 of which were drug related, his last conviction was in 1999 also for trafficking in dangerous drugs. The Appellant's appeal against his sentences on the grounds that they are excessive.

8. Taking into account the amount of drugs in those cases, the sentences that were imposed were in line with the guidelines. As for the charge in HCMA 1113 of failing to surrender to custody, the one month's imprisonment can, in no way, be said to be excessive.

9. The learned Magistrate had in his haste neglected to mention that this one-month term was after he had taken into account, the one-third reduction for plea. It is clear that he had the plea in mind because for the sentence in charge 1 he had reduced the sentence to 8 months because of the plea, and it is also clear from the learned Magistrate's oral reasons at p. 24 of the transcript where he said:

"I have taken one month, having regard to the question of totality. In fact, two months' imprisonment could be justified for that even after plea but I shall take one month."

10. What I have to consider is whether the sentences in both HCMA 1113 and HCMA 1114 being made consecutive would be manifestly excessive in the circumstances.

11. The learned Magistrate had the principle of totality in mind when he was considering the sentences in both cases and at the end of the day, I consider that in all the circumstances, the sentences were neither manifestly excessive nor wrong in principle. So the appeal is dismissed.