HKSAR v. NGO WAI KUEN, LAI LAI

cacc 191/2004 &

CACC 334/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NOS.191 OF 2004 & 334 of 2004

(ON APPEAL FROM dccc 1282/2003AND 161/2004)

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J U D G M E N T

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 Stuart-Moore, VP (giving the judgment of the Court):

1.  An unsatisfactory state of affairs has arisen in this application, unfortunately not for the first time, where three offences, all committed within a relatively short space of time by the same offender, were dealt with by three separate judges in the District Court on three different occasions.  This was most unsatisfactory and Mr David Leung, on the respondent’s behalf, has indicated that steps are being taken in an attempt to avoid a similar occurrence.

CACC 334/2004 (DCCC 161/2004)

2.  The applicant is a female now aged 37.  She was first arrested on 12 June 2003 in a 3^rd floor room at 523 Shanghai Street, Mongkok, following a police raid.  Others (D2 and D3) were also arrested.  Inside the premises, tables and stools, together with drug-taking paraphernalia, including a large quantity of syringes, were found.  The applicant was found to be in physical possession of two plastic bags containing 11.35 grammes of heroin hydrochloride, as well as some keys to the premises.  She told the police that she had been instructed by someone to deliver heroin to the premises, a known drugs divan, and that she was paid $400 for each delivery.  The applicant pleaded guilty before Deputy Judge Wyeth on 12 July 2004 to trafficking in the quantity of heroin found on her and she was sentenced on 14 July 2004 to three years and four months’ imprisonment against which she now seeks leave to appeal (in CACC 334/2004).

CACC 191/2004 (DCCC 1282/2003)

3.  The second offence in its chronological sequence, with which we are concerned (CACC 191/2004), took place on 22 September 2003.  This was outside the same premises in Shanghai Street where the applicant had been arrested in June.  The police had been waiting on the staircase of the premises during the early hours of the morning and intercepted the applicant as she was walking up the stairs.  She was carrying a rucksack in which there was a brown paper bag containing four plastic bags of heroin hydrochloride weighing 44.43 grammes.  The applicant appeared before Judge Day on 15 April 2004 and pleaded guilty to trafficking in the quantity of heroin for which she was sentenced to four years and four months’ imprisonment and to a total of four-and-a-half years’ imprisonment after the judge activated a suspended sentence.  Again, the applicant has sought leave to appeal against this sentence.

3^rd District Court case (DCCC 221/2004)

4.  The third offence with which we are only indirectly concerned, took place on 29 September 2003.  This was an offence of keeping a divan at the same premises in Shanghai Street.  The applicant appeared in the District Court (DCCC 221/2004) on 21 May 2004 before Judge H.C. Wong.  Again, she pleaded guilty and, on the same day, was sentenced to twelve months’ imprisonment.  There is no application for leave to appeal in relation to this sentence but we shall have to return to this in due course.

Sentencing chronology and effect

(1)     15 April 2004: Judge Day

5.  On 15 April 2004, for the second offence in the chronological sequence, committed on 22 September 2003, Judge Day correctly took a starting point of seven years’ imprisonment.  If he had reduced this by exactly one-third to reflect the plea of guilty, the resulting sentence would have been four years and eight months but taking into account other matters in mitigation before him, he reduced the sentence to four years and four months’ imprisonment.  He then activated a four-month suspended sentence that had been imposed for offences of theft in December 2002 and ordered that two months of that sentence should run consecutively to the sentence for trafficking, making a total of four-and-a-half years’ imprisonment.  It seems that in these proceedings the judge was wrongly informed by the prosecution that the applicant had six previous convictions.  In fact, she has nineteen other convictions on her criminal record.   These are for a wide variety of offences going back to 1984.

(2)     21 May 2004: Judge H.C. Wong

6.  The sentence in the case which came before Judge H.C. Wong on 21 May 2004 is not the subject of any application.  However, for this offence, committed on 29 September 2003 (a week after the offence dealt with by Judge Day), the applicant’s sentence of one year’s imprisonment was ordered to run consecutively to the extent of only six months’ imprisonment to the sentence imposed by Judge Day on 15 April 2004.  This made, therefore, a total of five years’ imprisonment.

(3)     14 July 2004: Deputy Judge Wyeth

7.  The last sentence in this series was imposed on 14 July 2004 in respect of the first of the offences, committed on 12 June 2003.  For trafficking in the 11.35 grammes of heroin, the judge quite rightly took a starting point of five years’ imprisonment, reducing this for the applicant’s plea of guilty to three years and four months’ imprisonment.  The judge ordered that two years of this term were to be served consecutively to the existing terms of imprisonment, making seven years’ imprisonment in all.

The application

8.  Although Judge H.C. Wong’s sentence is not the subject of either of these applications, it is the overall sentence being served by the applicant about which complaint is made in the grounds presented to us by Mr Raffell.  Understandably, he submitted that all three cases should have been dealt with at the same time and that this court should now approach the matter in this light.  We agree with this proposition.

9.  Mr Raffell next laid emphasis on the total quantity of drugs in which the applicant was trafficking on the charges which are the subject of the applications now before us, pointing out that this warranted, under the guidelines in R v Lau Tak-ming [1990] 2 HKLR 370, an overall starting point of eight years’ imprisonment if taken as a whole.  In making this submission, Mr Raffell had, with respect, confused the position of an offender who, for example, is caught with drugs in his physical possession and then, soon afterwards, is found to be in possession of a further store of drugs at his home.  In such circumstances as those, a court will rightly look at the combined weight of the drugs to reach a suitable sentence in totality.  This is not such a case.  Each offence was committed on a wholly separate occasion.  Indeed, it is a significant aggravating feature that the second and third offences in the sequence were committed whilst the applicant was on bail.  In principle, therefore, the sentences fell to be imposed consecutively, subject only to the proper application of totality.

10.  We consider that essentially, although the offences were wrongly brought for sentence before different judges on different occasions, more or less the correct totality for these three offences, following pleas of guilty, was achieved but for one factor.  We have referred already to mitigation placed before Judge Day which caused him to reduce the sentence for trafficking by more than a third.  However, counsel who appeared in the case before Deputy Judge Wyeth were wholly unaware of the material provided to Judge Day and necessarily, it follows, so was the judge.  We are confident that if Deputy Judge Wyeth had been provided with the additional material shown to Judge Day, which is what ought to have happened, he would have concluded that a meaningful discount of about a year from the maximum level of sentence, namely seven years in the District Court when passed (as the sentence should have been) by one judge on one occasion, would have been appropriate in the present circumstances.

Conclusion

11.  For these reasons, therefore, we shall order that only one year of the sentence imposed by Deputy Judge Wyeth should be served consecutively to the other sentences being served by the applicant.  We grant leave and, treating the hearing as the appeal, the appeal is allowed to the extent that the sentences, in their totality, are reduced from seven years to six years’ imprisonment.