HKSAR v. HO CHING MAN FAYE

CACC 326/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 326 OF 2015

(ON APPEAL FROM DCCC NO. 466 OF 2015)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against the order that a sentence of 3 years and 4 months’ imprisonment imposed on her on 22 September 2015 by a District Court Judge Woodcock following her conviction on a plea of guilty to a charge of unlawfully trafficking in dangerous drugs on 27 March 2015, namely 13.04 grammes of cocaine, 0.99 grammes of heroin hydrochloride and 0.24 grammes of cannabis in herbal form, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 was to be served consecutively to the sentence of 8 months’ imprisonment, imposed on the applicant on 30 July 2015 for an offence of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212.

2.  Although Mr Daryanani objected to the grant of leave to appeal against sentence, he indicated in his written submissions that he had no objection to the court resolving the issue on the papers.

The facts

3.  Having pleaded guilty, the applicant accepted ‘Summary of Facts’ as a basis for the Court accepting that plea.  The applicant had been intercepted by police officers that she was about to enter premises in Shek Kip Mei Street in Sham Shui Po.  The handbag which the applicant was carrying was found to contain the dangerous drugs and subject of the charge.  The cocaine was contained in over 100 re-sealable plastic bags. The heroin hydrochloride was contained in four re-sealable plastic bags and the cannabis in yet another plastic bag.

4.  In a video recorded interview under caution, the applicant said that she had bought the dangerous drugs for $13,000, claiming that they were for her own consumption.  However, in the Summary of Facts she accepted that she possessed the dangerous drugs for the purpose of unlawful trafficking.

Reasons for sentence

5.     In her reasons for sentence, the judge noted the applicant had seven previous criminal convictions, including a conviction for possession of dangerous drugs in 1998 and a conviction for trafficking unlawfully in dangerous drugs in November 2011.  For the latter case, she was sentenced to 3 years and 8 months’ imprisonment.  Noting that the applicant had been remanded in custody following her arrest on 27 March 2015, the judge said that whilst the applicant had been in the Remand Centre she had committed an assault occasioning actual bodily harm, for which she had been sentenced subsequently by Fanling Magistracy to 8 months’ imprisonment.

6.  Of the submissions made in mitigation, the judge said:

“ The defendant in court now frankly admits she was in possession of the cocaine as a courier, and her payment or reward for carrying the cocaine from A to B was the heroin. The defence submits she is a heroin addict. What supports this is her previous conviction for possession of dangerous drugs and a urine report which shows that when she was remanded after this arrest, she had opiates in her system. The prosecution did not challenge the defendant’s mitigation that the heroin was for her own consumption. The packaging seems to also support this submission.”

6.  In the result, the judge determined:

“ I will take into account and I do accept the mitigation that the cocaine was for trafficking and the heroin for her own use. If, as I am told, the defendant takes 1 gramme per day, this quantity of heroin would only last her a few days. The amount of cannabis is minimal, and I will not take that into account.”

7.  The judge went on to say that, in determining the appropriate sentence, she had regard to the matters advanced in mitigation and the fact that the applicant had pleaded guilty.  Having averted to the guidelines for sentencing set out in the judgment of the court in The Queen v Lau Tak Ming, the judge said that trafficking unlawfully in heroin or cocaine in the range of 10 to 50 grammes fell in the bracket of 5 to 8 years’ imprisonment.

8.  Then, the judge stipulated a starting point for the sentence of 5 years’ imprisonment, which she discounted by one-third to 3 years and 4 months’ imprisonment, for the applicant’s plea of guilty.  In the result, the judge sentenced the applicant to 3 years and 4 months’ imprisonment, which she ordered to be served consecutively to the sentence imposed in “Fanling Magistracy case 3244 of 2014.”

Grounds of appeal against sentence

9.  In the grounds of appeal against sentence advanced on behalf of the applicant, Mr Bullet submitted that the judge had erred in ordering the sentence of 3 years and 4 months’ imprisonment that she imposed on the applicant to be served consecutively to the sentence of 8 months’ imprisonment, which the applicant was then serving.  He said that having regard to considerations of totality that sentence ought to have been made “wholly or partly concurrent” to the other sentence.  He submitted that, “the total sentence of 4 years’ imprisonment” was manifestly excessive.

10.  In his written submissions, Mr Bullet said that the judge, “…did not explicitly state that she had considered totality when making a sentence wholly consecutive to the assault sentence.”  On the other hand, he acknowledged that in the course of mitigation the judge had adverted to the fact that the applicant was serving a sentence of 8 months’ imprisonment for an offence of assault occasioning actual bodily harm, for which the earliest date that discharge was 4 December 2015.  Of that, he said:

“ There is nothing else to suggest that the learned judge considered totality when passing sentence, as she ought to have; and the sentence in fact passed, when made consecutive to the assault sentence, amounted not to 3 years and 4 months plus a couple of remaining months for the assault sentence, but (the earliest date of discharge being irrelevant) to 4 years, implying a combined starting point of 6 years imprisonment.”

A consideration of the submissions

11.  The offence of assault occasioning actual bodily harm of which the applicant had been convicted and sentenced on 30 July 2015 had occurred on 13 May 2015 at Lo Wu Correctional Institution, whilst the applicant was on remand for the charge of unlawfully trafficking in dangerous drugs on 27 March 2015.

12.  In the course of an exchange between counsel for the applicant and the judge during the course of mitigation, the following interchange ensued:

“ COURT: It also seems that she has another -- she is actually serving a sentence at the moment, it’s not reflected in the criminal record.

MISS WONG: Yes.

COURT: She’s actually serving an 8-month sentence for a Fanling Magistracy case, earliest date of discharge is 4 December.

MISS WONG: Discharged 4 December.

COURT: Yes, do you want to take instructions on that?

MISS WONG: Yes, I actually I knew that she -- I knew that she’s serving a sentence of another case, it’s AOA...

COURT: AOABH, Fanling case, 8 months.

MISS WONG: But because I’m not sure about the conviction date or the discharge date. May I have some moment.

COURT: Well she might not know, or she probably does know it, but just confirm that it’s a Fanling Magistracy case, she was sentenced to 8 months for AOABH, discharged 4 December - earliest discharge, 4 December 2015.

….

MISS WONG:  Yes, your Honour, your information is correct.”

13.  As Mr Bullet submitted it is not clear why the judge made reference to the applicant’s prospective date of discharge.  Clearly, she was aware that the date of discharge was by no means a certain date, because she said of that date it was, the “earliest discharge”.  Of course, it was contingent on the applicant’s behaviour as a prisoner, and was a discretionary matter.

14.  The judge gave no reasons for her order that the sentence of imprisonment she imposed on the applicant, namely 3 years and 4 months, was to be served consecutively to the sentence of 8 months’ imprisonment that the applicant was then serving.  Similarly, the judge did not advert specifically to the principle of totality of sentence.  Although, as noted earlier, counsel for the applicant was aware of the fact that the applicant was serving a sentence of imprisonment imposed on her whilst she was on remand for the offence of unlawfully trafficking in dangerous drugs, she made no submission as to whether the sentence the judge was about to impose ought to be ordered to be concurrent or partly concurrent to the sentence that she was then serving.

15.  As Mr Daryanani has pointed out, there are judgments of this Court that indicate that the sentence of imprisonment imposed on a defendant for the commission of an offence whilst a serving prisoner ought to be made consecutive to the sentence of imprisonment that the defendant was serving at the time of the later offence.[1]  The sentiment of those judgments resonate with the judgment of the Court of Appeal of England and Wales delivered by Lord Taylor CJ in v Mark Paul Azzopardi [2].

16.  Given that the issues referred to above were not even canvassed let alone addressed in the lower court and given the uncertain relevance of the judge’s reference, in the course of receiving submissions are mitigation, to the applicant’s earliest date of discharge in respect of the sentence of 8 months’ imprisonment, in my judgment it is appropriate to grant the application for leave to appeal against sentence.

Conclusion

18.  Accordingly, I grant the applicant leave to appeal against sentence.

[1] Attorney General v Yuen Yum Shing [1980] HKLR 360, at page 362; and Secretary for Justice v Vo Van Tung [2002] 3 HKC 95, at paragraphs17-20.

[2] Mark Paul Azzopardi [1996] 1 Cr App R (S) 124, at 127.