THE QUEEN v. WONG SAU MING

Criminal procedure - consecutive terms of imprisonment passed on different occasions - whether exceeding statutory limit - s.82 District Court Ordinance.

(In re Hamilton; In re Forrest [1981] A.C. 1038 followed; dictum of Yang J A in The Queen v. Yuen Shek-on [1987] H.K.L.R. 736 applied.]

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J U D G M E N T

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Fuad V.-P. (giving the judgment of the Court).

1. With the consent of the parties, we heard these two applications for leave to appeal against sentence together for they concern the same Applicant, Wong Sau Ming, and Mr. Buchanan, who did not appear in the Courts below, now represents him on both applications.

2. On 15 August 1988 the Applicant pleaded guilty before Judge Evans in the District Court to possessing dangerous drugs for the purpose of unlawful trafficking (1st charge) and to possessing an instrument fit and intended for injecting a dangerous drug (2nd charge).

3. He was sentenced to 3 years' imprisonment on the 1st charge and to 3 months' imprisonment on the 2nd charge, the sentences to run concurrently. These offences were committed during the operative period of a sentence of imprisonment of 3 months suspended for 2 years, which had been imposed in the Magistrates Court on 26 November 1986 following a conviction for the simple possession of dangerous drugs. Judge Evans "activated" the suspended sentence and so the Applicant was to serve a total of 3 years and 3 months' imprisonment. He seeks leave to appeal against the sentence and order of the judge (Appeal No. 400 of 1988).

4. The Applicant, who is 29, was living in a room in an estate in Kowloon with his wife and 10-year old daughter. There was a police raid on 13 May 1988 and some suspected dangerous drugs were found and seized, as well as a number of plastic syringes with their needles. Analysis showed that they were indeed dangerous drugs: 93 67 grammes of a mixture containing 6.65 gammes of salts of esters of morphine.

5. Apart from the conviction on 26 November 1986 the Applicant had 5 previous convictions, of which there was one for trafficking in 1977, when he received a sentence of 18 months' imprisonment. The other convictions were for wounding loitering, a triad connected offence and criminal damage.

6. In his Reasons for Sentence, Judge Evans said that he accepted the Applicant's assertion that he was a drug addict and that some of the drugs found were to satisfy that addiction. He said that but for the plea of guilty he would have imposed a sentence of 4 years' imprisonment. He explained why he had ordered the sentences on the 1st and 2nd charges to run concurrently and stated that he saw no reason why the suspended sentence should not be "activated" in full and take effect at the expiration of the other sentences imposed.

7. On 24 October 1988, the Applicant pleaded guilty before Judge Moylan in the District Court to two offences of possessing dangerous drugs for the purpose of unlawful trafficking. He was sentenced to 12 months' imprisonment on the 1st charge and to 5 years' and 3 months' imprisonment on the 2nd charge. These sentences were ordered to run concurrently but consecutively to the sentences imposed by Judge Evans in the earlier case. He seeks leave to appeal against the sentences imposed by Judge Moylan (Criminal Appeal No. 523 of 1988).

8. The facts before the judge were that on 13 July 1988 police officers went to the same room in the estate in Kowloon which they had raided two months before. They had to kick the door open. The Applicant and his family were inside. 7.14 grammes of a mixture containing 0.45 of a gramme of salts of esters of morphine were found in the drawer of a wall unit and a further 259.27 grammes of a mixture containing 15 84 grammes of salts of esters of morphine were discovered in the top of the water cistern of a lavatory used exclusively by the Applicant and his family. The drugs were in 36 sealed polythene bags.

9. In his Reasons for Sentence, Judge Moylan noted that the offences had been committed while the Applicant was on bail pending trial before Judge Evans, and while a suspended sentence was still operative. These he regarded as aggravating factors. He indicated that but for the plea of guilty he would have passed a sentence of 6 years' imprisonment. When ordering the sentences he had imposed to take effect upon the expiry of the sentences imposed by Judge Evans, he expressed his uncertainty about the true construction of s.82 of the District Court Ordinance and, therefore, whether that section empowered him to make the order he had made, which, meant that the Applicant would be required to serve a total of 8 years and 6 months' in prison.

10. Mr. Buchanan did not seek to argue that Judge Moylan had exceeded his sentencing powers as a matter of law.

11. The relevant authorities are discussed in The Queen v. Yuen Shek-on [1987] H.K.L.R. 736 where the judgment of the Court of Appeal was given by Yang, J.A. (as he then was). That was a case on the proper construction of s.57 of the Magistrates Ordinance, but s.82 of the District Court Ordinance was also discussed and the Court expressly disapproved the decision in Wonq Sai-nang v. The Queen [1980] H.K.L.R. 242 as having been given per incuriam. The Court applied by analogy, In re Hamilton; In re Forrest [1981] A.C. 1038, a decision of the House of Lords upon the interpretation of S 108(1) of the Magistrates' Courts Act 1952 of the United Kingdom.

12. Although Yang, J.A.'S observations in Yuen Shek-on upon the effect of s.82 of the District Court Ordinance were, strictly speaking, obiter, we respectfully agree that Wong Sai-nang is no longer good law and that that section must be interpreted as if the words "on the same occasion" were interpolated into proviso (a) to subsection (2) of the section, viz:

"82, (1) Where the court sentences any person to undergo a term of imprisonment for an. offence, and such person is already undergoing, or is at the same time sentenced to undergo, imprisonment for another offence it shall be lawful for the Court to direct that such imprisonment shall commence at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo as aforesaid.

(2) Notwithstanding the provisions' of any enactment in force at the commencement of this Ordinance and notwithstanding that proceedings have not been taken by way of indictment, the Court may impose any penalty and make any order provided by law for or in connexion with any offence of which it has cognizance:

Provided that -

(a) no sentence of imprisonment passed by the Court shall exceed 7 years in respect of one offence and where two or more consecutive terms of imprisonment are imposed by the Court [on the same occasion] under sub-s. (1), the aggregate of the said terms of imprisonment shall not exceed 7 years; and

(b) any term of imprisonment imposed in default of payment of a fine shall not exceed 1 year." [interpolation added]

13. Judge Moylan did not impose two consecutive terms of imprisonment on 24 October 1988. What he did was to direct that the concurrent sentences he himself had imposed should commence at the expiration of the term of imprisonment the Applicant was then serving. The sentences the judge passed and the order he made on that day were, therefore, lawful.

14. Mr. Buchanan did not submit that the sentences imposed on each occasion by the two judges were in themselves excessive but he did contend that when the totality of the sentences imposed was taken into account, that is to say 8 years and 6 months, the term of imprisonment the Applicant would have to serve became manifestly excessive. He pointed out that had the Applicant been tried for all these offences by the same District Judge, by virtue of s.82 of the District Court Ordinance, the judge could not have imposed combined sentences exceeding 7 years.

15. Judge Moylan, as we have indicated, took into account the fact that the Applicant was on bail when he committed the two offences which were before him and, indeed, when a suspended sentence of imprisonment was still in operation. We think that he was right to regard these facts as aggravating features. He also carefully considered as he was bound to do whether by making an order that the sentences for those offences should take effect at the expiry of the sentences which had earlier been imposed by Judge Evans, their totality would be excessive.

16. The Applicant committed these offences with his eyes open. On two entirely separate occasions he was found in possession of a considerable quantity of dangerous drugs. We are not persuaded that the totality of the sentences imposed giving rise to the two applications before us, was manifestly excessive; nor do we think that Judge Moylan erred in principle. Therefore, both applications for leave to appeal against sentence are refused.