HKSAR v. NG CHUN WING

HCMA761&762/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 761 & 762 OF 1999

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J U D G M E N T

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1. The Appellant, on his own plea, was convicted of two offences which were separately dealt with in two cases before Miss J. Livesey, a magistrate at Kwun Tong. The case numbers do not correspond chronologically with the dates of the offences which caused a lot of confusion to the Magistrate and even to Counsel when addressing me. I, therefore, think that it would be easier for everybody concerned if I were to use the dates of the offences for actual reference.

2. In the first happened case, the Appellant was charged that on 20 May 1999, outside Room 1345, Tsui To House, Tsui Ping Estate, Kwun Tong, he had in his possession a dangerous drug, namely, 20 packets containing 5.43 grammes of a mixture containing 3.10 grammes of heroin hydrochloride. The second offence was that on 10 June 1999, at the lift lobby on 20/F, Tsui Nam House, Tsui Ping Estate, Kwun Tong, he had in his possession a dangerous drug in 50 packets, namely, 13.87 grammes of a mixture containing 6.45 grammes of heroin hydrochloride.

3. On 14 July 1999, he pleaded guilty before the Magistrate who sentenced him to a total of 27 months' imprisonment. For one of the offences, apparently, for the one that happened earlier, he was sentenced to 18 months' imprisonment and for the later offence, he was sentenced to 21 months' imprisonment. Having taken into account the totality principle, the Magistrate made six months of the sentence for the first offence to run consecutively to the sentence for the second offence.

4. Before me, Counsel for the Appellant raised three points on sentence. He pointed out that the Appellant was not a persistent offender; secondly, there was admittedly a risk of dissipation which might justify an enhancement of sentence and; thirdly, the Magistrate failed to give the usual one-third discount for the guilty plea.

5. In her Reasons for Sentence, the Magistrate referred to the six previous criminal convictions of the Appellant, only the first of which related to dangerous drugs, and she stated as follows :

"In sentencing the Appellant I gave him credit for his pleas of guilty, however he was caught red-handed on each occasion with the drugs in his personal possession. I also took into account the totality of the sentences. In determining the starting point I bore in mind that the two charges faced by the Appellant were for simple possession only. Within a period of three weeks the Appellant was found in possession of firstly 20 packets and then 50 packets of dangerous drugs, two relatively large quantities of drugs, bearing in mind they were to be for his own personal consumption. In the circumstances, in sentencing the Appellant, I therefore could not ignore the possibility that some of the drugs may have been disposed of by the Appellant to others for their own use."

And she took 27 months as the starting point for one of the offences and 24 months as starting point for the other.

6. For the purpose of the appeal on sentence for simple possession of dangerous drugs, it is most pertinent to refer to the decision of Patrick Chan J. (as he then was) in R v Leung Moon Wah HCMA 643 of 1996, (9 July 1996, unreported), where he said this :

"The length of an imprisonment term must depend on the facts of each case and the relevant factors include the amount of narcotics involved, the number of packets found, the latent risk in a case where the quantity of drugs is not insignificant, the addiction of the defendant, the previous character of the defendant, whether there is a history of multiple offences involving dangerous drugs and his personal circumstances."

In that case where the appellant pleaded guilty to possession of dangerous drugs, the narcotic content of heroin was 0.43 grammes, contained in eight packets. The appeal was allowed and the sentence of 12 months was reduced to nine months.

7. In R v Chiu Hung Wong [1994] 1 HKCLR 184, where the two appellants were involved with possession of a larger quantity of drugs, namely, 14.37 grammes of salts of esters of morphine and 16.31 grammes of salts of esters of morphine respectively, they were each sent to prison for two years. Both appellants in that case were persistent offenders.

8. Bearing in mind those authorities and the other authorities on simple possession of dangerous drugs cited to me by Counsel, I am of the view that the starting point in respect of the 20 May 1999 offence should be 15 months and that for the second offence that took place on 10 June 1999 should be two years, taking into account that the two offences took place within three weeks of each other, the blameworthy nature of the Appellant having been caught in May for possession of dangerous drugs was caught again just three weeks later to possess an even larger quantity of drugs, and the latent risk of dissipation.

9. Now I turn to the question of whether a one-third discount from the starting point should be granted to the Appellant because of his guilty pleas.

10. Miss Chan for HKSAR argued that the Magistrate had apparently taken into account the larger quantity of drugs in the second offence as well as to the date of occurrence of the second offence, being three weeks after the commission of the first offence, for coming to the view that the Appellant was not genuinely remorseful when he pleaded guilty to the two offences before her. She relied on the case of R v Lee Kwong Wing HCMA 282 of 1996 where Patrick Chan J. said the one-third discount for a guilty plea was only given to those who were genuinely remorseful and who saved the court's time and everybody's time by a plea at the earliest possible stage. The learned Judge also commented on the fact that the Appellant in that case was caught red-handed and she observed that it would be difficult to see any other alternative but to plead guilty to the offence as charged.

11. As I have stated in HKSAR v Poon Ki Chiu HCMA 209/99 (31 March 1999, unreported), considering the cases cited therein ending with the case of HKSAR v Wong Ka Kuen & Another, Cr App No.35 of 1998 (28 January 1999, unreported), being caught red-handed is not a sufficient reason to disallow the full discount of one-third which is usually given to a guilty plea at the earliest opportunity.

12. In the present case, although the two offences were committed within a matter of three weeks, the plea to each of them was entered on the same day of 14 July 1999 and that could not be said not to be indicative of a genuine remorse on the part of the Appellant, especially in view of the fact that 14 July was the first opportunity that was available to him for his plea to be taken.

13. The higher starting point of sentence adopted by the Magistrate in relation to the second offence had apparently taken into account the larger quantity of drugs involved and also the closeness of the date of commission of that offence after the first offence, and if a full reduction of one-third was not given to the Appellant for his guilty plea by accepting the argument of Miss Chan that the Appellant's soon repeated offence demonstrated lack of remorse, then the commission of the two offences within three weeks would be taken into account twice for increasing the starting point and for not allowing the full reduction of one-third, which would at least appear to be unfair to the Appellant.

14. In the circumstances, I am of the view that a full one-third discount should be given to the Appellant in respect of the sentences for both of the offences. The resulting figure would be 10 months' imprisonment for the first offence and 16 months' imprisonment for the second offence. Taking into account the totality principle, I think it is appropriate to make the four months of the first sentence to run consecutively with the second sentence; otherwise, the two sentences should run concurrently.

15. The result is that the Appellant is going to serve a total of 20 months' imprisonment. The appeal is to allow to that extent.