HKSAR v. OR WAI TONG

CACC 250/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 250 OF 2009

(ON APPEAL FROM HCCC NO. 168 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.  On 14 July 2009, the Applicant pleaded guilty to one charge of trafficking in dangerous drugs (135.21 grammes of a crystalline solid containing 131.17 grammes of methamphetamine hydrochloride, that is, ice) and one charge of simple possession of dangerous drugs (being 2.65 grammes of a crystalline solid containing 2.63 grammes of ice and one tablet containing 4 milligrammes of diazepam). On 6 January 2009, the Applicant was arrested by Customs & Excise Officers who were conducting anti‑narcotics operations in Tsimshatsui. The drugs (the subject matter of the trafficking charge) were found in a shopping bag carried by the Applicant, while the other drugs (the subject matter of the possession charge) were found in a car, the keys to which were found on the Applicant.

2.  The same day, Deputy High Court Judge Toh sentenced the Applicant as follows : ‑

(1)  For the trafficking charge, the Judge adopted a starting point of 11 years’ imprisonment.  This was discounted by one‑third on account of the plea of guilty, resulting in a sentence of 7 years 4 months’ imprisonment.

(2)  For the possession charge, a starting point of 18 months was adopted.  This was reduced to 12 months’ imprisonment again on account of the guilty plea.  The Judge ordered that 6 months of this sentence should be served consecutively to the term of imprisonment imposed for the trafficking charge, the remainder concurrently.

In all, therefore, the Applicant was sentenced to a term of 7 years 10 months’ imprisonment.

3.  The learned Judge took into account the Applicant’s previous record (he has 16 previous convictions, including two for trafficking in dangerous drugs).

4.  The Applicant makes no complaint about the individual sentences that were passed for the two offences. The only ground of appeal is that the Judge erred in ordering that a part of the sentence for the possession charge be served consecutively to that for the trafficking charge.

5.  Although logically the two offences can be said to be separate, we are of the view that, from the point of view of totality, it was wrong in the present case to so treat them. The amount of ice in the possession charge was 2.63 grammes. When this amount is added to the quantity of ice under the trafficking charge, there a total of 133.8 grammes. If the Applicant had been charged with trafficking in dangerous drugs in this total amount, the starting point of his sentence would then have been no higher than that adopted by the Deputy Judge in the present case, namely, 11 years’ imprisonment. The amount of the other drugs found in the Applicant’s possession (namely, one tablet containing 4 milligrammes of diazepam) was negligible. In these circumstances, it would not be right to pass an overall sentence greater than that which would have been passed had all the drugs been the subject of a single trafficking charge.

6.  For this reason, we agree with Mr Boyton (and also Mr W T Chiu for the Respondent) that the Deputy Judge ought not to have ordered a part of the sentence for the possession charge to be served consecutively to the sentence for the trafficking charge. The two sentences ought to have been ordered to be served wholly concurrently. A similar approach was adopted by this court in HKSAR v Ip Yuet Ho (葉粵豪) [2008] 6 HKC 35 where, in relation to charges of trafficking and possession of cocaine and ice, Yeung JA said this at 40H‑I (paragraph 34) : ‑

“  If this amount had been part of the cocaine in the trafficking charge, it would have made no difference to the sentence.  It could not be right, in our opinion, that because the applicant was going to consume this quantity himself he should now find himself faced with a longer sentence than he would have received if all the cocaine was to be trafficked by him.”

7.  Accordingly, we grant leave to the Applicant to appeal against sentence and, treating this hearing as the appeal proper, we allow the appeal and substitute a sentence of 7 years 4 months for the original sentence of 7 years 10 months.