HKSAR v. HO CHING MAN FAYE

CACC 326/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 326 OF 2015

(ON APPEAL FROM DCCC NO. 466 OF 2015)

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J U D G M E N T

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1. The appellant appeals with the leave of the single judge [1] against the order that a sentence of 3 years and 4 months’ imprisonment imposed on her on 22 September 2015 by District Court Judge Woodcock following her conviction on a plea of guilty to a charge of unlawfully trafficking in dangerous drugs on 27 March 2015, namely 13.94 grammes of cocaine, 4.48 grammes of heroin hydrochloride and 0.24 grammes of cannabis in herbal form, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 was to be served consecutively to the sentence of 8 months’ imprisonment, imposed on the appellant on 30 July 2015 for an offence of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212.

The facts

2. The appellant had been intercepted by police officers as she was about to enter premises in Shek Kip Mei Street in Sham Shui Po.  The handbag which the appellant was carrying was found to contain the dangerous drugs the subject of the charge.  The cocaine was contained in over 100 re-sealable plastic bags.  The heroin hydrochloride was contained in four re-sealable plastic bags and the cannabis in yet another plastic bag.

3. In a video recorded interview under caution, the appellant said that she had bought the dangerous drugs for $13,000, claiming that they were for her own consumption.  However, in the Summary of Facts she accepted that she possessed the dangerous drugs for the purpose of unlawful trafficking.

Reasons for sentence

4.   In her reasons for sentence, the judge noted the appellant had seven previous criminal convictions, including a conviction for possession of dangerous drugs in 1998 and a conviction for trafficking unlawfully in dangerous drugs in November 2011.  For the latter case, she was sentenced to 3 years and 8 months’ imprisonment.  Noting that the appellant had been remanded in custody following her arrest on 27 March 2015, the judge said that whilst the appellant had been in the Remand Centre she had committed an assault occasioning actual bodily harm, for which she had been sentenced subsequently by a magistrate in Fanling Magistracy to 8 months’ imprisonment.

5. The judge said that she accepted the submissions made in mitigation that the cocaine was for unlawful trafficking and the heroin was for her own use, observing that if it was correct that her consumption of heroin was one gramme per day, it would, “only last her a few days.”  Having described the amount of cannabis as “minimal”, she said that she did not take it into account in sentencing.

6. Having averted to the guidelines for sentencing set out in the judgment of the court in The Queen v Lau Tak Ming[2], the judge said that trafficking unlawfully in heroin or cocaine in the range of 10 to 50 grammes fell in the bracket of 5 to 8 years’ imprisonment.

7. Then, the judge stipulated a starting point for the sentence of 5 years’ imprisonment, which she discounted by one-third to 3 years and 4 months’ imprisonment, for the appellant’s plea of guilty.  In the result, the judge sentenced the appellant to 3 years and 4 months’ imprisonment, which she ordered to be served consecutively to the sentence imposed in “Fanling Magistracy case 3244 of 2014.”

8. The judge gave no reasons for her order that the sentence of imprisonment she imposed on the appellant was to be served consecutively to the sentence of 8 months’ imprisonment that the appellant was then serving.  Also, the judge did not advert specifically to the principle of totality of sentence.

Grounds of appeal against sentence

9. Mr Bullet takes no issue with the starting point taken for sentence by the judge or the sentence of 3 years and 4 months’ imprisonment imposed on the appellant.  Rather, Mr Bullet submitted that the judge had erred in ordering the sentence of 3 years and 4 months’ imprisonment that she imposed on the applicant to be served consecutively to the sentence of 8 months’ imprisonment, which the appellant was then serving.  Having regard to considerations of totality of sentence, he said that the sentence ought to have been made wholly or partly concurrent to the other sentence.  He prayed-in-aid the judgment of this Court in the Attorney General v Au Kwok Chu [3], followed by Tong J in a magisterial appeal in HKSAR v Suen Pan Hoi.[4] He submitted that he total sentence of 4 years’ imprisonment was manifestly excessive.

10. Mr Bullet submitted that there was nothing to suggest that the learned judge considered the principle of totality of sentence when ordering that the sentences be served consecutively to one another.  The total sentence of 4 years’ imprisonment implied an overall starting point for sentence of 6 years’ imprisonment, which was manifestly excessive.

A consideration of the submissions

11. The Fanling Magistracy Case 3244 of 2014, to which the judge referred, was an offence of assault occasioning actual bodily harm of which the appellant had been convicted and sentenced on 30 July 2015.  The assault occurred on 13 May 2015 at Lo Wu Correctional Institution, whilst the appellant was on remand for the charge of unlawfully trafficking in dangerous drugs on 27 March 2015.

12. In the course of an exchange between counsel for the appellant and the judge during the course of mitigation, the following interchange ensued:

“ COURT: It also seems that she has another -- she is actually serving a sentence at the moment, it’s not reflected in the criminal record.

MISS WONG: Yes.

COURT: She’s actually serving an 8-month sentence for a Fanling Magistracy case, earliest date of discharge is 4 December.

MISS WONG: Discharged 4 December.

COURT: Yes, do you want to take instructions on that?

MISS WONG: Yes, I actually I knew that she -- I knew that she’s serving a sentence of another case, it’s AOA...

COURT: AOABH, Fanling case, 8 months.

MISS WONG: But because I’m not sure about the conviction date or the discharge date. May I have some moment.

COURT: Well she might not know, or she probably does know it, but just confirm that it’s a Fanling Magistracy case, she was sentenced to 8 months for AOABH, discharged 4 December - earliest discharge, 4 December 2015.

MR BEEL: I -- the only -- I have -- that was a pending case. I don’t have that as an up-to-date case. I understand from taking instructions that that was to do with an altercation inside the Correctional institute in which she was...

COURT: Well that will explain 8 months.

MR BEEL: Yes, pending, obviously the disposal...

COURT: This case.

MR BEEL: Yes, the disposal of this case, your Honour. I’m not sure why that has not been reflected in the...

MISS WONG:  Yes, your Honour, your information is correct.”

13. Notwithstanding that information, counsel for the appellant made no submission as to whether the sentence which the judge was about to impose ought to be ordered to be concurrent or partly concurrent to the sentence that she was then serving.

14. The Brief Facts, which the appellant accepted as the basis of the magistrate accepting her plea of guilty to the assault occasioning actual bodily harm of a fellow inmate at Lo Wu Correctional Institution, described an attack by no fewer than seven female inmates, of whom the appellant was one, on another female inmate by pulling her hair and punching her.  Having been cautioned, the appellant admitted that she was the first person to assault the victim, who sustained skin abrasions to her upper back.

15. The appellant’s appeal against the sentence of 8 months’ imprisonment imposed upon her by the magistrate was dismissed by A Wong J on 4 November 2015.[5]  The judge said that, having viewed the CCTV film of the attack, that “…the starting point of 12 months, albeit heavy, is still within a reasonable range where no intervention is required.” [6]  Having afforded the appellant a discount of one-third from the starting point for her plea of guilty, the magistrate imposed a sentence of 8 months’ imprisonment.  The judge determined that the appellant and her co-appellants received a “…fair sentence for (sic) which they deserve.”

16. In the Attorney General v Yuen Yum Shun [7] this Court allowed the Attorney General’s application for review of sentence, quashed the sentence of 1 year’s imprisonment imposed on the respondent for an offence of assault occasioning actual bodily harm, which was ordered to be served concurrently to the sentences the respondent was then serving.  The offence was committed whilst the respondent was a prisoner serving a sentence of 8 years’ imprisonment for the offence of manslaughter and 6 years’ imprisonment for the offence of robbery.  In its place, the Court substituted a sentence of 6 months’ imprisonment, which was ordered to be served consecutively to the sentences of imprisonment the respondent was then serving.  The assault occasioning actual bodily harm occurred as a result of a dispute between the respondent and a fellow inmate.  In the judgment of the court, Li JA said:[8]

“ However, we find that the learned magistrate was wrong in principle to order a concurrent sentence. It is a separate and additional offence. Although the respondent is serving a lengthy sentence it does not merit the sentence being ordered to be served concurrently. The sentence should be consecutive.”

17. In the Secretary For Justice v Vo Van Hung [9] this Court allowed an application for a review of sentence by the Secretary for Justice and increased to 4½ years’ imprisonment the sentence of 2 years’ imprisonment imposed on the respondent following his conviction after trial for an offence of attempting to cause grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. In addition, the Court ordered that the sentence should be served consecutively to the sentence of 29 years’ imprisonment the respondent was serving for the offence of murder.  This Court imposed that determinate sentence in substitution for the sentence of life imprisonment imposed after trial.  In making those orders, the Court quashed the judge’s order that 22 months of the sentence of 2 years’ imprisonment imposed by the judge should be served concurrently to the sentence of 29 years’ imprisonment.  In doing so, in the judgment of the Court, Stuart-Moore VP said:[10]

“ …it was wrong in principle for the judge in the lower court to have made the term of imprisonment she imposed to run concurrently, except to the extent of two months, to the sentence the Respondent was already serving. In cases of this kind, questions of totality will necessarily play a minimal role. In this case, we are satisfied that there is no warrant for ordering part of the sentence to run concurrently.”

18. In R v Mark Paul Azzopardi [11] the Court of Appeal of England and Wales upheld various lengthy sentences of imprisonment imposed on the appellants for offences, including conspiracy to cause grievous bodily harm with intent, conspiracy to riot, and conspiracy to commit violent disorder, which sentences were ordered to be served consecutively to sentences the appellants were already serving.  The offences occurred during a riot at a prison in Manchester.  In the judgment of the court, Lord Taylor CJ said:[12]

“ Where serious offences are committed in prison it is necessary that a sentence consecutive to that which the prisoner is already serving should be imposed. If that were not the case then those in prison could have a free run to commit offences, knowing that they are already serving a substantial sentence and that the courts would take the view that it should not be added to and they would receive merely a concurrent sentence. We consider, in the public interest and for the maintenance of order in prisons, that if a serious offence is committed in prison a consecutive sentence is appropriate.”

19. In the Attorney General v Au Kwok Chu this Court allowed the Attorney General’s application for the review of a sentence of 1 month’s imprisonment, ordered to be served concurrently with a sentence of 5½ years’ imprisonment which the respondent was then serving, following the respondent’s conviction on his plea of guilty to a charge of possession of dangerous drugs, namely 0.06 grammes of heroin hydrochloride, in Lai Chi Kok Reception Centre.  Having quashed the sentence of 1 month’s imprisonment, this Court substituted a sentence of 12 months’ imprisonment, ordering that six months of that sentence be served concurrently with the sentence of 5½ years’ imprisonment the respondent was serving.  The Court said that it did so having regard to totality of sentence.

20. It appears from the judgment of the Court that the respondent had ingested the package of heroin hydrochloride on 20 October 1995, prior to his incarceration in Lai Chi Kok Reception Centre.  On 23 October 1995, he discharged the packet, which was discovered in his faeces.

21. Whilst the offence of possession of dangerous drugs within the precincts of a Correctional Services Institution is an aggravated form of the commission of the offence of possession of dangerous drugs and challenges discipline within the Institution, in context the gravity of the offence is much less than direct violence being visited on another person within the Institution.

22. In HKSAR v Suen Pan Hoi, Tong J allowed the appellant’s appeal against a sentence of 8 months’ imprisonment imposed following his plea of guilty to an offence of assault occasioning actual bodily harm on a fellow inmate in Stanley prison, which sentence was ordered to be served consecutively to the sentence of 5 years and 3 months’ imprisonment which the appellant was then serving.  Tong J ordered that four months only of the sentence of 8 months’ imprisonment was to be served consecutively to the existing sentence.  In doing so, having cited the judgment of this Court in the Attorney General v Au Kwok Chu, he said “Considering the totality of the two terms in the present case, I believe that the same approach should be adopted here.” [13] Tong J did not elaborate on why he determined it appropriate to do so, given that the offence was one of violence which challenged the very core of the disciplinary regime in a Correctional Services Institution.

23. For our own part, we are satisfied that as a matter of principle it is appropriate that the sentence of imprisonment imposed for an offence of violence, committed by a prisoner whilst in prison serving another sentence, ought to be ordered to be served consecutively to the sentence the prisoner was then serving.  Although the judge did not advert specifically to a consideration of whether or not the sentence she imposed ought to be ordered to be served partly consecutively to the sentence of imprisonment the appellant was then serving, we have no doubt whatsoever that it would have been very much in her mind.  It was entirely appropriate that the judge ordered that the sentence of imprisonment she imposed be served consecutively to the sentence of 8 months’ imprisonment which the appellant was then serving.

Conclusion

24. Accordingly, we dismiss the appeal against sentence.

[1] Lunn VP, 11 May 2016.

[2] The Queen v Lau Tak Ming [1990] 2 HKLRD 370.

[3] Attorney General v Au Kwok Chu (AR 22/1995; unreported, 8 May 1995).

[4] HKSAR v Suen Pan Hoi (HCMA 927/200;unreported, 18 October 2000).

[5] HKSAR v Ho Ching Man, Faye & Others (HCMA 495/2015; unreported, 4 November 2015).

[6] HKSAR v Ho Ching Man, Faye & Others, paragraph 56.

[7] Attorney General v Yuen Yum Shun [1980] HKLR360.

[8] Attorney General v Yuen Yum Shun, page 362.

[9] Secretary for Justice v Vo Van Hung [2003] 3 HKC 95

[10] Secretary for Justice v Vo Van Hung, paragraph 19.

[11] R v Mark Paul Azzopardi [1996] 1 Cr. App. R. (S) 124.

[12] R v Mark Paul Azzopardi, page 127.

[13] HKSAR v Suen Pan Hoi, page 3.