HKSAR v. LI HOK LEUNG

HCMA 1001/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1001 OF 2004

(ON APPEAL FROM KCCC 6733/2004)

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J U D G M E N T

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1.  The Appellant in this case had pleaded guilty in the Magistrates’ Court do three charges.  The 1^st charge was trafficking in dangerous drugs on 14 March; the 2^nd and 3^rd charges happened on 23 March and the 2^nd charge is for trafficking in dangerous drugs namely 21 packets of ketamine with a total weight of 17.71 grammes.  The 3rd charge was possession of Part I Poison namely 30 tablets of zoplicone. 

2.  The facts in this case show that on 14 March an undercover agent was on-duty in a covert anti-drug-trafficking operation inside the 348 Disco in Yau Ma Tei. 

3.  Shortly after midnight, they arrived there, and at about 2 am he was approached by two males.  One of them was the Appellant and the other male asked the undercover officer if he wished to buy drugs and said he had “candies” and “K Chai” for sale.  So, the undercover officer said he wanted to buy 2 tablets of candies and one packet of ketamine.  Then he was asked to pay $300 and then that male walked away. 

4.  About an hour later, that male walked back to the undercover officer and handed over a transparent bag of white powder to the undercover officer.  That was subsequently found to contain 0.22 grammes of ketamine.  And the male then said to the undercover officer that he would get the candies later. 

5.  At about 3:30 am, the Appellant then walked up to the undercover officer, alone, and handed over to him one transparent plastic bag containing one orange colour tablet and that was found subsequently to contain 0.01 gramme of methamphetamine hydrochloride.

6.  The Appellant then told the undercover officer that he had no more “candies” in stock.  He would return $100 to him and subsequently the other male then walked up to the undercover officer and handed over a $100 back to the officer. 

7.  On 21 March, the police conducted a licence check on the disco.  When the police party arrived, the Appellant left the disco.  The Appellant was followed into the street and then subsequently he was intercepted.  He was searched and on his person was found the 20 packets of ketamine, the subject matter of the 2^nd charge and 30 tablets of zopiclone, the subject matter of this 3^rd charge.

8.  He was arrested for trafficking and under caution, the Appellant admitted that he had the drug for the purposes of trafficking inside the 348 Disco. 

9.  The Appellant is 21 and had a clear record.  The Appellant was subsequently sentenced by the learned Magistrate to terms of imprisonment.  As the learned Magistrate had properly observed in his Reasons for Sentence that a deterrent sentence was necessary taking into account that the activities were committed inside a disco, the Appellant was plying his sordid trade in the disco and the effect these drugs would have on the public.  The learned Magistrate in his Reasons for Sentence had considered the guidelines laid down for trafficking in methamphetamine hydrochloride and also in ketamine.  And then he came to his conclusion that the proper sentence for the 1^st charge was 10 months for the 2^nd charge 11 months, 6 months for that consecutive to the 1^st charge and 1 month, for the 3^rd charge consecutive to the above two sentences thus making a total of 17 months.

10.  The Appellant had appealed against the sentence.  Mr Pannu who represented the Appellant in this appeal and in the court below had submitted several grounds of appeal.  First of all, the learned Magistrate had failed to properly consider the background of the Appellant, his clear record particularly, and the circumstances that led to the commission of the offence and the guilty pleas of the Appellant.

11.  Upon looking at the transcripts of what happened on the day of sentence, it was clear that proceedings had started in the English language with Mr Pannu mitigating on behalf of the Appellant.

12.  Mr Pannu had suggested in his mitigation that the learned Magistrate should call for a drug addiction treatment centre report but the learned Magistrate did not find that was necessary at the end of the day.

13.  After Mr Pannu’s mitigation, the learned Magistrate then immediately pronounced his sentence and what is of concern to this court is the fact that Mr Pannu had submitted his mitigation in English and the court without any indication then proceeded to sentence the Appellant in Chinese.  While it is true that the court has two official languages, both English and Chinese, I would expect that when the Appellant is represented by counsel and counsel had done his mitigation in English, the learned Magistrate if he wishes to proceed with sentencing the Appellant in Chinese, ought to have indicated this to counsel present in Court, first of all, to see there is any objection from counsel or perhaps counsel may not be very familiar with the Chinese language.  In these circumstances, though, Mr Pannu had not taken any point on it because I am told by him that he is familiar with the Chinese language but I would make my comment here and hopefully that in future should a magistrate wish half way through the proceedings to switch into another official language that he should do so after having properly informed counsel present of his intention but as I have said no real harm was done in this case.

14.  The learned Magistrate then in very simple sentenced the Appellant to the sentences that I have already indicated.  And he also said that “我會講得好清楚，呢類咁嘅案件越嚟越多，尤其嗰兩位– 兩個著名嘅disco，喺嗰度販運危險藥物，法庭係唔會手軟。唔該晒”, so basically what the learned Magistrate was saying was that he wanted to say clearly that this type of offence is on the rise and particularly in that disco and so when it comes trafficking in dangerous drugs, the court will not treat it lightly.  The Magistrate rose at 11:23 and when the court resumed at 11:25, Mr Pannu then submitted to the learned Magistrate that he should give a discount to his client for having pleaded guilty and the learned Magistrate then said that he had already given the discount and if Mr Pannu wished to pursue this that he should ask for a review and that was the end of the matter before the learned Magistrate.

15.  In the Reasons for Sentence which was prepared by the learned Magistrate, the learned Magistrate had indicated that he did take into account, first of all, that the disco in question is one of the two most notorious hub of drug related activities and having sat in Court 1 of the Kowloon City Magistrates’ Courts, he had noticed a substantial number of dangerous drug cases in these two discos.  Therefore, in the circumstances, he considered that deterrent sentences to be proper and I must say that I totally agree with him.  Then, in his reasons of sentence, the learned Magistrate indicated that he had considered the DATC Report and the mitigation but the background the Appellant pales into significant against the major concern for the deterrence because the Magistrate had considered that the Appellant had played a crucial role in this drug trafficking case.

16.  In view of that, the learned Magistrate considered that it was not necessary at the end of the day to call for a DATC Report and so he had proceeded to sentence.  Basically this court found that there was nothing wrong in the reasons that the learned Magistrate had written in his Reasons for Sentence.

17.  The only concern that this court raises is, while this court fully appreciate that magistrates in Court 1 normally have a very full workload and that they do not have the luxury of dealing with individual cases by using a lot of time with each case and also that the courts on appeal had said before that a Magistrate does not have to give full reasons for his sentence at the time when he pronounces sentence, appreciating that the learned Magistrate need only give the bare minimum reasons in view of the workload and that he could give fuller reasons in his Reasons for Sentence later.  Appreciating all this, nevertheless, I would suggest it is incumbent on a magistrate, when pronouncing sentence, to indicate in some way that he did take into account, the plea of the Appellant and also that the learned Magistrate should specify the starting point he had in mind.

18.  I have been referred to the 4^th edition of Sentencing in Hong Kong by Cross and Cheung at page 254 where it said:

“Precision is required of the sentencer in the computation of sentence.  A starting point cannot, that is, simply be indicated in general terms.  In R v Cheung Hon-ki Criminal Appeal 25/96, the Court of Appeal confronted a situation in which the trial judge, having said that a starting point of ‘two to three years’ was appropriate, proceeded to impose two concurrent terms of imprisonment of 18 months.  The court commented that the judge had erred by identifying the starting point only by way of a range.  For the future, it was said that a specific starting point should be stated so as to make manifest the discount given.”

19.  It is clear therefore that the practice had always been that the sentencer should always enunciate the starting point he was working from and having given the usual discount for the mitigation then arrive at the sentence.

20.  It is not for that a court on appeal to work out what his starting point may have been, because the information should have been available to the Appellant, at the time the sentence was pronounced in order for him or his legal advisor to consider, the appropriateness of the sentence and whether to take the matter any further.  And in this case, this point was highlighted by the fact that Mr Pannu, upon the court’s pronouncement, had a few minutes later made the application before the learned Magistrate to consider discounts for the pleas of guilty of his client, and it was only then that the learned Magistrate indicated that he had taken that into account.  So it is not satisfactory that the learned Magistrate had not enunciated the starting point.  This is not the first time that I have seen this happen and I hope that for future reference that Magistrates will, no matter how busy they are, indicate at the time of sentence the starting point they had in mind when sentencing an Appellant.

21.  These sentences are, as Mr Lam had pointed out, all within the sentencing guideline in relation to the drugs ketamine and methamphetamine, certainly because of the small quantity, they are within the discretion of the sentencing Magistrate.  As I have said it is not the quantity in this case that was of the most concern, it is also the overall criminality i.e. where the drug was being sold and in what form.  The role of the Appellant in the supply of this drug, Mr Lam had pointed out that in the case of Wong Suet Hau & another [2002] 1 HKLRD 69.  The court had observed that it is the supply of dangerous drugs to the public that is the most important consideration and it is not whether the supplier was making any good profit or not in a particular situation so the court had the duty to deter the supply of dangerous drugs to the public.  And it is against that evil behind all these drug trafficking cases that the court had to consider the sentences.

22.  I, therefore, for the reasons I have given above, do consider that as far as the trafficking case is concerned that the overall criminality has to be looked at.  But one has to also take into account the fact that the Appellant had a clear record in this case.  We do not know basically what the learned Magistrate’s starting point was at the time when he determined the proper sentence, I am therefore concerned that the learned Magistrate when dealing with the sentences may not have taken into proper account, at the time he sentenced the clear record of the Appellant.

23.  Under these circumstances, I will allow the appeal against sentence and having considered the overall criminality of these offences and taking into account that this is the Appellant’s first offence, I determine that the overall starting point on Count 1 should be 9 months’ imprisonment which is to be reduced to 6 months because of his plea; on the 2^nd charge it should be 12 months’ imprisonment and reduced to 8 months because of his plea; 4 months of that will be consecutived to the 6 months in the 1^st charge; and on the 3^rd charge, it should be a starting point of 3 weeks reduced to 2 weeks because of his plea and that sentence will be concurrent to the 2^nd charge so the Appellant will go to prison for a total of 10 months’ imprisonment.