HKSAR v. L

[English Translation – 英譯本]

CACC 125/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 125 OF 2014

(ON APPEAL FROM DCCC NO 1111 OF 2013)

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REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the Court):

Background

1.  The applicant of this case pleaded guilty to two charges: The first charge was assaulting a police officer in the due execution of his duty (“the assault police charge”), contrary to section 36(b) of the Offences Against the Person Ordinance, Cap 212, Laws of Hong Kong, and the second charge was trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong.

2.  The facts were that on 10 September 2013 the police conducted an anti-narcotics operation in a building in Lower Wong Tai Sin Estate.  The first prosecution witness (“PW1”) was instructed to stay at one end of the corridor of one of the floors to carry out observation, while his teammates were on the staircase between two floors, waiting to give support and assistance.  At the material time, the applicant and the other defendant in the present case walked towards PW1, each holding an iron bar of about 1.5 feet long in their hands. PW1 revealed his police identity to them and demanded that they put down their weapons, but the other defendant swung his iron bar at PW1 and the applicant kicked PW1 in his left knee.  However, both of them were subdued by PW1.  Subsequently, the police searched the applicant’s dwelling place and found a packet which contained 29.92 grammes of ketamine.

Terms of Imprisonment

3.  District Judge Anthony Kwok adopted 18 months as the starting point for the first charge, ie the assault police charge and reduced it by one third on account of the applicant’s guilty plea, resulting in a term of 12 months’ imprisonment for that charge. As for the charge of trafficking in a dangerous drug, according to the sentencing guidelines laid down in Secretary for Justice v Hii Siew Cheng（許守誠）& Another [2008] 3 HKC 323, the appropriate starting point for an amount of ketamine close to 30 grammes is 5 years.  As the applicant claimed that four grammes of the 30 grammes or so ketamine was for his own use, the District Judge set the starting point at four years and eight months, ie 56 months.  Since the applicant had given assistance to the law enforcing authorities, the District Judge reduced the sentence by half, making a term of 28 months. He further ordered that four months of the term of 12 months for the first charge be run concurrently with and that the remaining eight months be run consecutively to the sentence for the second charge. Accordingly, the applicant was to serve 36 months’ imprisonment for these two charges.

4.  The applicant applies for leave to appeal against sentence.  The only argument he put forward is that the District Judge should have reduced the term of imprisonment in respect of the first charge by the same proportion.

Sentencing Principles

5.  According to Z v HKSAR (2007) 10 HKCFAR 183, it is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant had given to the authorities and give an appropriate reduction from the sentence which the defendant would otherwise have received. The object of the policy is to encourage offenders to provide material assistance to the authorities for the prevention, detection and prosecution of crimes. The assistance rendered by a defendant will be taken into consideration by the court whether the information he provided concerns crimes for which he is being sentenced or other crimes unconnected to such crimes.  In that case, the defendant pleaded guilty to some fraud charges and theft charges, and was sentenced to 5½ years’ imprisonment.  He had provided the police with information that a number of illegal immigrants were coming to Hong Kong to commit [a] robbery with firearms.  Later, the illegal immigrants were intercepted by the police.  Although the defendant refused to be a witness, two of the persons arrested were convicted; one was convicted of aiding and abetting illegal immigrants to come to Hong Kong and the other was convicted of possession of a firearm and ammunition without a license.  The Court of Final Appeal held that the defendant was entitled to a reduction of sentence.

6.  The cases before Z v HKSAR shows that the court took account of the fact that the material assistance provided by the defendant was only related to some of the charges he faced, and only reduced the sentences of those related charges.  As for those unrelated charges, there was no reduction of the sentences, see: R v Heung Chi Keung [1991] 1 HKLR 353 and R v G [2010] EWCA Crim 3047.

Our View

7.  In the present case, we consider that a more appropriate approach would have been to reduce the terms of both of the sentences by one half.  However, we do not need to determine whether the District Judge had committed an error in principle by not giving the same one half reduction in relation to the assault police charge.  The reason is that even assuming, for the sake of discussion, that an error in principle was involved, we still need to consider whether the total sentence passed by the District Judge was manifestly excessive.  Since the two charges preferred against the applicant were of different nature, the sentences should undoubtedly be served consecutively.  This is in line with the sentencing principles, but the District Judge also considered another sentencing principle which is equally important, ie the totality principle. Therefore, he ordered that only part of the sentence of the assault police charge be run consecutively to that of the charge of trafficking in a dangerous drug.

8.  In the light of all the circumstances of this case and having considered mitigating factors favourable to the applicant, we hold that the three years’ imprisonment imposed by the District Judge was appropriate and was not manifestly excessive.  For the above reasons, we dismiss the application.