THE QUEEN v. LUK KAM WING

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JUDGMENT

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

1. The applicant pleaded guilty to two charges of trafficking in a dangerous drug and was sentenced to 1 1/2 years' imprisonment and 4 1/2 years' imprisonment respectively, to be served consecutively, making a total of 6 years' imprisonment.

2. He applies now for leave to appeal against sentence out of time.

3. The grounds of appeal are that first the judge was wrong to make the sentences consecutive, and secondly, that a total sentence of 6 years' imprisonment was manifestly excessive given the plea of guilty, the assistance which the applicant gave to the authorities after his arrest, and that the total amount of narcotic was only 113.87 grammes.

4. The facts were that the applicant was stopped in the street on 1st December 1994, searched and two packets of dangerous drugs were found, these being the drugs referred to in the first charge. The narcotic content was 9.00 grammes. Some 12 minutes later, the police took him to his premises which were searched and the drugs, the subject of the second charge, were found. These had a narcotic content of 104.87 grammes.

5. We agree with Mr Kwok who appears for the applicant that the proper course for the judge to have adopted would have been to make the sentences concurrent. These two offences were quite clearly part of one event and should have been treated in this way. Even if the judge was correct to treat them as consecutive, he should have looked at the totality sentence of the two sentences having regard to the total narcotic content. When this is done, a sentence of 4 1/2 years would be about right.

6. We therefore allow the application for leave to appeal against sentence out of time, and treat the application as the appeal. The appeal is allowed to the extent that the sentences of 1 1/2 years and 4 1/2 years respectively shall be served concurrently.