THE QUEEN v. LUI CHUN-HEI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 413 & 632 OF 1988

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J U D G M E N T

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1. This Appellant was convicted on two charges of possession of dangerous drugs for the purpose of unlawful trafficking. In respect of each conviction he was sentenced to imprisonment of 2 years. The second sentence was ordered to run consecutively with the first so that on the one day he received total sentences of four years imprisonment in respect of two acts of possession for the purposes of unlawful trafficking.

2. Both charges allege that the quantity of the mixture containing drugs was 10.42 grammes. In one case the quantity of heroin was 0.83 gramme and in the other, 0.77 gramme. His Counsel, Miss Chainrai, readily concedes that, within the guidelines laid down by CHAN Chi-ming, neither sentence could be said to be excessive looked at on its own. The appeal, however, is brought only in respect of the second sentence, and it has been submitted that the totality principle should have been applied by the second sentencing magistrate, and had it been then a total sentence of 4 years imprisonment would not have been imposed because it would have been excessive.

3. There is ample authority for the proposition that the totality principle applies whenever a person is sentenced on two occasions in close proximity to one other, and that the second Court should consider ordering that the sentences be served concurrently rather than consecutively.

4. In this case, it so happens that the first sentence was imposed in respect of an offence committed earlier than the offence to which he was sentenced on the second occasion. There was an aggravating feature to which Mr. Halley has drawn my attention in that the second offence was committed whilst the Appellant was on bail awaiting trail in respect of the first offence. I therefore think that I should not order that the sentences be served concurrently. But I do think that the overall criminality of the Appellant did not warrant a sentence of four years imprisonment. I allow the appeal against sentence so as to adjust the total of sentences amount to imprisonment for 21/2 years. I therefore allow the appeal, quash the sentence and in lieu thereof order that the Appellant be sentenced to imprisonment of 6 months.