HKSAR v. NG KA WING KEVIN

CACC 563/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 563 OF 1999

(ON APPEAL FROM DCCC 727 OF 1999)

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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. On 6 October 1999, the applicant pleaded guilty in the District Court before Judge de Souza to four drug offences. Sentence was adjourned to enable Probation, Detention Centre and Drug Addiction Treatment Centre reports to be obtained.

2. On 20 October 1999, the applicant, aged 21, was sentenced to a total of 4 1/2 years' imprisonment against which he now seeks leave to appeal.

3. The charges were as follows :

" 1st Charge
Statement of Offence

Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Particulars of Offence

NG Ka-wing, Kevin, on the 7th day of June, 1999, at Flat B, 1st Floor, Fu Wing Building, Nos16-18, Pitt Street, Yaumatei, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 14.98 grammes of a mixture containing 11.88 grammes of heroin hydrochloride and 0.095 gramme of a crystalline solid containing 0.093 gramme of methamphetamine hydrochloride.

2nd Charge
Statement of Offence

Keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

Particulars of Offence

NG Ka-wing, Kevin, on the 7th day of June, 1999, in Hong Kong, kept a divan, namely, at Flat B, 1st Floor, Fu Wing Building, Nos16-18, Pitt Street, Yaumatei, Kowloon, where a dangerous drug, namely, heroin hydrochloride was sold in the divan to be smoked therein.

3rd Charge
Statement of Offence

Possession of apparatus fit and intended for injection of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap.134.

Particulars of Offence

NG Ka-wing, Kevin, on the 7th day of June, 1999, at Flat B, 1st Floor, Fu Wing Building, Nos16-18, Pitt Street, Yaumatei, Kowloon, in Hong Kong, had in his possession 81 brand new syringes, fit and intended for the injection of a dangerous drug, namely, heroin hydrochloride.

4th Charge
Statement of Offence

Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

Particulars of Offence

NG Ka-wing, Kevin, on the 7th day of June, 1999, at Flat B, 1st Floor, Fu Wing Building, Nos16-18, Pitt Street, Yaumatei, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely, 0.39 gramme of a mixture containing 0.26 gramme of heroin hydrochloride and one folded HK$20 banknote containing traces of heroin hydrochloride."

4. Police raided the premises referred to in the charges and found 10 male patrons inside. The applicant admitted that he was managing the premises in return for a daily wage of $800. He was searched and found to be in possession of 37 packets of heroin and one packet of "ice" (charge 1). A further packet of drugs was found on a table which the applicant admitted was for his own consumption (charge 4). The applicant was a drug addict. Charges 2 and 3 are self-explanatory. The applicant admitted that he packed heroin into small packages using the electronic scale that was found on the premises. He then sold the heroin to drug addicts at $100 and $150 per packet (charge 2). New syringes were available at $3 each (charge 3).

5. In passing sentence, the judge referred to the Drug Addiction Treatment Centre report which confirmed that the applicant was a drug addict. The applicant had first become involved in drug abuse at the age of 14 and was addicted by the time he was 18. He did not come before the court on this occasion as a person of previous good character. The judge took the view that the first three offences could be said to "basically form one transaction" and that the sentences imposed on those charges should be concurrent.

6. Applying the sentencing guidelines in R. v Lau Tak-ming & Others [1990] 2 HKLR 370 (as applying to heroin) and in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125 (as applying to ice), the judge took a starting point on the 1st charge of six years' imprisonment, no doubt taking into account all of the circumstances surrounding the trafficking in those drugs. On the second and third charges, he took starting points of two years and twelve months respectively. Concurrent sentences, amounting to four years' imprisonment in all, were imposed to take into account the discount of one-third. The difficulty in this application relates to the 4th charge where the judge took a starting point of nine months and reduced it to six months for the plea, but ordered that this term should be served consecutively, making 4 1/2 years in all.

7. Mr Marray, on behalf of the applicant, has submitted that the sentence was manifestly excessive having regard to the fact that the amount of heroin in the 4th charge was very small and could not, if that heroin had been incorporated in the trafficking charge (charge 1), have made any practical difference to the sentence imposed on charge 1. Putting it another way, he submitted that the applicant has come off worse, in effect, by admitting the small amount of drugs in charge 4 as having been for his own consumption than he would have done if he had said that they were also for trafficking, like the drugs in charge 1. In such circumstances, he argued that the imposition of an additional six months on charge 4, bearing in mind that the judge had already adopted a fairly high starting point on charge 1, was excessive.

8. We may add, too, that the applicant had not entered a tactical plea by trading off his pleas of guilty on the first three charges, which were more serious, against the fourth hoping that that might be left on the file. He had made a clean breast of all these matters and had pleaded guilty to the charges as they stood.

9. Mr Tam Sze-lok, on behalf of the respondent, submitted that the sentences taken together do properly reflect the gravity of the offences. He argued that if the judge had erred in principle, it was in treating the offences disclosed in charges 1, 2 and 3 as lending themselves to wholly concurrent sentences. He reminded us of the judgment given by Pang J in HKSAR v Ho Sai-chak, HCMA 780/1999, which was similar to the present case, where he said:

"...Although it can be said that the defendant was arrested in one police operation, however, the act of providing drugs to others for consumption and that of keeping a divan are different and separate matters. One activity does not necessarily include the other. The appellant was prepared, in addition to providing drugs, to offer the convenience of a divan to drug addicts. As such, the two charges cannot be said to be arising out of the same set of facts.

The order for the sentences to run consecutively cannot be criticised as being wrong in principle. However, one must not lose sight of the totality principle...."

10. We respectfully agree with those words. We also see the force of Mr Tam's argument that if, on charge 2, some six months of the sentence had been made to run consecutively, the overall sentence would have come to 4 1/2 years, albeit by a different route to the one taken by the sentencing judge.

11. The question we have asked ourselves is whether the judge took a higher starting point than he strictly needed to have taken under the sentencing guidelines in Lau Tak-ming and Ching Kwok-hung in order to reflect the criminality involved in charges 1 to 3 taken as a whole. There were two kinds of drugs being trafficked and the applicant was keeping the divan where they were being sold.

12. In charge 1, the heroin mixture contained 11.88 grammes of the narcotic and the ice weighed a mere 0.093 gramme. Under the Lau Tak-ming guidelines, the range of 10 to 50 grammes of heroin is covered by recommended sentences of between five to eight years as the sentencing judge had correctly pointed out in his Reasons for Sentence. However, a five year starting point might, in normal circumstances, have been seen to be the proper starting point for the amount involved here unless, as it was open to the judge to find, he considered that the offence disclosed in charge 2, and to some extent charge 3, aggravated the situation. The small amount of ice in the context of this case could have made virtually no difference at all.

13. We consider, on balance, that the judge's sentence of four years in total properly reflected the overall criminality. Furthermore, we believe that the applicant would be left with an understandable grievance having to serve a longer sentence on account of the drugs in his possession for personal consumption when, if they had been included in the drugs in charge 1, he would have been left to serve a total of four years' imprisonment because the small quantity in charge 4 could have made no real difference.

14. Accordingly, we grant leave and, treating the hearing as the appeal, we shall reduce the sentence the applicant must serve to four years' imprisonment by making the sentence of six months on charge 4 concurrent with the other sentences. To this extent, the appeal is successful.