HKSAR v. CHOW YU CHI

CACC 359/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 359 OF 2000

(ON APPEAL FROM DCCC 627 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 9 August 2000, the Applicant pleaded guilty in the District Court before Judge Toh to two charges of trafficking in mixtures which contained a combined total of 17.39 grammes of heroin hydrochloride. He was sentenced to four and a half years' imprisonment in total after the judge ordered the Applicant to go to prison on count 1 for two years and on count 2 for four years, making two and a half years of the sentence on the second charge to run consecutively to the sentence on the first charge. The Applicant now seeks leave to appeal on the ground that the sentence was too long.

2. The facts were very straightforward. On 10 May 2000, Customs and Excise officers observed the Applicant entering premises in Yuen Long. A short time later, he left those premises. The officers followed the Applicant and stopped him on the street nearby. He was searched and in one of his trouser pockets they found a cigarette packet. Inside the packet were two plastic bags, each containing ten plastic straws with a white substance inside them. This substance weighed 17.01 grammes which was a mixture containing 3.96 grammes of heroin hydrochloride (charge 1). The Applicant was arrested and he admitted that the twenty plastic straws belonged to him.

3. The officers had found in the Applicant's possession a key and he was then taken back to the premises he had earlier been seen to go in and out of. Found inside those premises was a nylon bag which in turn contained a briefcase. Inside the briefcase were 70 plastic straws containing a white substance. The weight of this mixture was 57.96 grammes containing 13.43 grammes of heroin hydrochloride (charge 2).

4. In a later interview, the Applicant admitted that the 90 straws, relating to the two charges, had been given to him for delivery to a person who was going to sell them in a park on the Yuen Long Estate. He said that he earned between $400-$500 a day delivering heroin.

5. In arriving at an overall sentence for these offences, the judge adopted the somewhat laborious route of taking, for each offence, a separate starting point before making adjustments for totality. In circumstances such as these, where both offences were committed on the same day on closely linked facts, it would have been proper for the judge to have calculated the overall starting point by combining the weights of heroin in each charge to arrive at a total weight. (See: HKSAR v Siu Pui-ching CACC 231/1997 at 2D-F, HKSAR v Yip Pik-kwai [1999] 3 HKLRD 42 at 43G-H and HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 at 832E-H) If the judge had adopted this approach, the normal tariff for offences such as these, involving the combined weight of 17.39 grammes of heroin hydrochloride, would have been in the order of five and a half to six years' imprisonment after trial under the Lau Tak-ming guidelines. This would have produced on a plea of guilty a sentence of about four years' imprisonment.

6. However, the matter does not rest there. A failure to follow the suggested route to sentence will not avail a prisoner if the sentence at which the court ultimately arrives is a proper one. In this case, the Applicant was a man who had two previous convictions. The last of these was in respect of two separate charges of possessing dangerous drugs. However, we have taken these into account in deciding that the proper starting point in this case was one of six years' imprisonment, and Mr Blanchflower, on behalf of the Respondent, very properly did not argue otherwise.

7. The approach taken by the judge in arriving at the two starting points reveals an error of principle. By looking at the two counts separately and taking individual starting points for the two quantities of heroin, she effectively arrived at six years and nine months as the starting point for the combined amount of drugs in the two counts which she then discounted by one-third to give credit for the pleas. As we have said, six years was the proper starting point for this case, and we can say that if the judge had taken the recommended route by which to ascertain an overall starting point, she would very probably have reached the same conclusion.

8. Accordingly, we shall grant leave and, treating the hearing as the appeal, we shall allow the appeal and reduce the sentence to an effective period of four years' imprisonment by making the sentences of two years and fours years on counts 1 and 2 respectively to run wholly concurrently. The effect of this is that the Applicant's sentence is reduced by six months and, to this extent, the appeal succeeds.