HKSAR v. LAI YAU FAT

CACC 278/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 278 OF 2000

(ON APPEAL FROM DCCC 419 OF 2000)

______________

_______________

J U D G M E N T

_______________

Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 3 July 2000, the Applicant pleaded guilty in the District Court before Deputy Judge Kelly to four charges of trafficking in heroin hydrochloride. He was sentenced to a total of four years and three months' imprisonment in respect of which he now seeks leave to appeal.

2. The summary of facts set out a familiar picture of trafficking in dangerous drugs at the Southorn Playground in Wanchai, which is well known as an area for this activity to go on, usually in straws containing about one-third of a gramme valued at between $120 and $140.

3. In order to combat the problem, police mounted a covert operation using an undercover agent posing as a drug addict. The sales of drugs to the agent were viewed through binoculars by other officers and these sales were also videotaped. The Applicant bought from the undercover agent on four different occasions. These were reflected in the charges brought against the Applicant.

4. Charges 1 and 2 related to trafficking on 1 and 2 February 2000 in mixtures weighing 0.19 and 0.24 of a gramme containing 0.06 and 0.09 of a gramme of heroin hydrochloride respectively.

5. Charges 3 and 4 were offences which were committed on 15 and 24 February 2000 respectively. The weights of the mixtures related to these charges were 0.21 and 0.22 of a gramme containing 0.07 and 0.09 of a gramme of heroin hydrochloride. When the Applicant was arrested after the supply to the undercover agent on 24 February 2000, he stated that he was a user of heroin and that he sold drugs to earn a living. In a later videotaped interview, he made a confession to each of the charges.

6. When sentencing the Applicant, the judge made reference to the normal starting point of two to five years' imprisonment for trafficking in small amounts of heroin. He took a starting point of three years' imprisonment in respect of all of these offences. He went on to say:

"You are entitled to a discount for your sensible and timely plea of guilty, and I sentence you to 2 years' imprisonment in respect of each charge. Wholly consecutive sentences would result in (a) disproportionate period of imprisonment."

7. The judge then imposed consecutive terms of nine months' imprisonment for each of the offences disclosed in charges 2 to 4, with the remaining parts of each two-year sentence ordered to run concurrently. This had the effect of adding twenty-seven months to the sentence of two years on charge 1, making four years and three months in all.

8. Ms Christina Ma, on behalf of the Applicant, submitted that the sentence was manifestly excessive because a sentence of two years after plea on each charge exceeded, she suggested, the tariff guidelines. She argued that the imposition of a further nine months for each subsequent offence was too high and that the judge should have adopted the approach of reducing the scale of sentence for the later offences of trafficking in order properly to take into account the totality principle. Reliance was placed for these contentions on Attorney General v To Ka-yin, CAAR 3/1996 (unreported) where the facts were very similar. The Court of Appeal reaffirmed the guideline tariff taken from The Queen v Lau Tak-ming [1990] 2 HKLR 370, of a minimum starting point of two years for offences of trafficking in heroin which will apply even when the narcotic content in the mixture supplied is very small. In To Ka-yin, the eleven charges related to the supply of small quantities to undercover officers. The combined weight of the mixtures was 3.06 grammes containing 0.37 of a gramme in total weight of heroin. The court considered that an overall starting point of three years' imprisonment would have been appropriate, reduced to two years to take into account the pleas of guilty.

9. Returning to the present case, the combined weight of the narcotic content was 0.31 of a gramme. However, this was only one consideration to be borne in mind when sentence was being considered.

10. The judge had also to consider the Applicant's antecedents. The Applicant's record shows that, since 1982, he has acquired 18 convictions, 13 of which were obviously drug-related. On two occasions, he had been sentenced for trafficking in dangerous drugs. The most recent of these two offences had led to a sentence of two years' imprisonment on 24 July 1998. As the judge pointed out in his Reasons for Sentence:

"I see that you have been sentenced to prison effectively every year for the last 7 years. That fact indicates that any rehabilitation in those previous sentences has simply not succeeded."

11. The judge was fully entitled to have taken into account the previous character of the Applicant. In saying this, we have in mind what was said by the court in HKSAR v Chan Pui-chi [1999] 3 HKC 848. The court had held that while a defendant should not be sentenced for previous offences, the repetition of the applicant's trafficking increased the gravity of these offences as far as sentence was concerned. The offence of drug trafficking was not an exception to the general rule that re-offending in the same way might aggravate the offence from a sentencing point of view. At page 851 the Court said:

"In R v Billam (1986) 82 Cr App R 347, the English Court of Appeal set out (at p. 350) eight factors which aggravate, for the purposes of sentence, the crime of rape. The fifth of these is

'... the defendant has previous convictions for rape or other serious offences of a violent or sexual kind.' (Emphasis supplied)

The Court went on to say that:

'Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.'

Extending this principle to another more common example, in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for repetition.

There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.

In drug trafficking cases, this was clearly recognised in R v Lau Tak Ming & Yeung Wai Shing & Others [1990] 2 HKLR 370 at p. 386F where the Court said:

'Within the suggested bands, factors which the sentencing judge may properly take into account are: ... his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf ....' (Emphasis added.)"

12. Returning to the present case, while three years was undoubtedly a higher starting point than would have been merited for someone who was of previous good character, we do not consider that the judge was in error in taking a higher starting point for someone with a record such as the Applicant's. What has troubled us, however, is the way in which the judge considered that for each and every subsequent trafficking offence, there should be a consecutive sentence of nine months.

13. We are well aware that undercover operations of this nature are ongoing and that it is generally undesirable from a tactical point of view to make any arrests until the operation has been completed. For this reason, where circumstances such as these prevail, the arrest of a particular trafficker, such as the Applicant, has to be delayed until the successful conclusion of the operation. We consider that, whilst consecutive sentences at least in part were fully justified to reflect the further offences, justice could have been done in this case by imposing an overall sentence, bearing in mind the pleas of guilty and totality, of three and a half years' imprisonment. Accordingly, we shall grant leave to appeal.

14. Giving effect to the three-year starting point taken by the judge for each of these offences, with which we have expressed our agreement, and treating the hearing as the appeal, we shall not interfere with the sentences of two years imposed on each of the charges 1 to 4. We shall, however, order that while the sentences on charges 2 and 3 will continue to run consecutively to charge 1 and to each other to the extent of nine months in each case, the sentence on charge 4 will run concurrently. This produces a sentence of three and a half years' imprisonment. The overall sentence of four years three months imposed by the judge is therefore reduced by nine months' imprisonment. To this extent the appeal succeeds.