R. v. KAM KAU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 543 OF 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant was convicted on his own plea of guilty on 11th April 1996 of an offence of trafficking in dangerous drugs, namely heroin, on 25th September 1995. The amount of heroin was 0.09 grammes. He was sentenced to 12 months' imprisonment. This is the sentence against which he appeals.

2. On 27th March, the appellant was convicted on his plea of trafficking in dangerous drugs on 18th October 1995. The quantity of heroin on that occasion was 0.11 grammes and for that offence, a sentence of imprisonment of 18 months was imposed. The magistrate ordered the 12 month sentence to run consecutively to this 18 month term.

3. The facts of the present offence are that in the course of a wide police operation to catch street traffickers in the Tai Po area, the appellant passed drugs to an undercover officer, and for which transaction he was paid $140. A few weeks later, that is on 18th October, the appellant was seen to hand dangerous drugs to someone in Shek Wu Hui, and he received $100 for that sale. The appellant was arrested straight away. He was only arrested for the present offence in November. It follows that neither offence was committed by the appellant whilst on bail for the other.

4. The appellant is aged 46 years and has a history of previous convictions in recent years, exclusively offences of possessing dangerous drugs.

5. The magistrate took a starting point for this offence (the September offence) of 2 years' imprisonment. No issue was taken as to that starting point. Then the magistrate said that there should be a discount of 25% for the plea of guilty. That would have meant a sentence of 18 months' imprisonment for this offence. The magistrate reached the figure of 12 months by purporting to apply the totality principle; in other words, by assuming that the two sentences would run consecutively and then adjusting the second sentence down to give the right overall totality as the magistrate saw it.

6. I pause to comment that this, in my judgment, is not the correct approach to the application of the totality principle. The reader of the appellant's future criminal record will assume that the sentencer considered 12 months to be the appropriate sentence for this offence whereas the appropriate sentence for this offence was, on the magistrate's reasoning, somewhat higher. The correct approach is to pass a sentence which is the appropriate sentence for the offence. Effect can then be given to the question of totality by using the vehicles of concurrent, consecutive and partly concurrent, or partly consecutive, sentences.

7. Be that as it may, Mr Chan argues that the total is too high given that the quantity of drugs in each case was very low and given also the proximity of the offences. I am inclined to agree that the totality is too high. I think that 2 years' imprisonment is the appropriate total. Accordingly, I order the sentence in relation to this charge, in the proper of the application of the totality principle, be substituted by one of 18 months' imprisonment, 6 months to run consecutively to the earlier term, 12 months to run concurrently, making a total of 2 years.