R. v. TSAI MING CHUAN

IN THE COURT OF APPEAL

1995, No. 141
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court):

1. The applicant was convicted on his own pleas of guilty by Deputy Judge Pang in the High Court on 23rd January 1995 on two counts of trafficking in dangerous drugs contrary to ss. 4(1)(a) and 4(3) of the Dangerous Drugs Ordinance.

2. The 1st count was that on 30th July 1994 outside 64B Mei Kwong Street in Tokwawan, he unlawfully trafficked in a dangerous drug, namely 80.63 grammes of a mixture containing 26.90 grammes of salts of esters of morphine.

3. The 2nd count was that on the same day, at Flat A, 66 Mei Kwong Street, which was upstairs in an adjoining building, he unlawfully trafficked in a dangerous drug, namely 229.26 grammes of a mixture containing 65.27 grammes of salts of esters of morphine.

4. In respect of the 1st count, he was sentenced to 3 years imprisonment and on the 2nd count, to 4 years imprisonment. The sentences were to run consecutively. He now seeks leave to appeal against sentence.

5. The facts are quite straightforward. On 30th July 1994, he was stopped in the street and searched by the police. The drugs which are the subject of the 1st count were found in a front pocket of his jeans. He was arrested. He then led the police to the flat and through it to a toilet. Suspended outside the window was a plastic bag which contained the drugs, now the subject of the 2nd count.

6. In sentencing the applicant, the judge took into account his young age at the time of the offence, which was 19 years, and a favourable training centre report. But, as I have indicated, he ordered the sentences to be consecutive. Mr Eric Kwok, who appears for him, submits that the judge should have aggregated the amounts involved in the two counts and then applied a discount to a single penalty in respect of a single offence.

7. Mr Casewell, who appears for the respondent, has very fairly informed the court that indeed is the more usual practice, as what the applicant seems to have done here was simply have been in the process of trafficking in part of the same overall quantity of drugs, all of which he was in possession of for the purpose of trafficking. Upon that basis, which we are disposed to accept in the particular circumstances, if the judge had aggregated the two amounts, the total produced would be 92.17 grammes which would fall within the category of 50-200 grammes in Lau Tak-ming [1990] 2 HKLR at 370, in respect of which the range of imprisonment is 8-12 years.

8. What the judge did was to use a starting point in respect of the 2nd count of 10 years which he discounted to 7 years. That represented a discount of about 40-45% of a mathematical interpolation. We think that it is not an inappropriate discount, having regard to the plea of guilty made at an early point, the favourable training centre report and, indeed, the assistance and attitude of the applicant in leading the police directly to the amount stored upstairs.

9. That said, we think that the somewhat high starting point adopted, the somewhat low actual discount given for the applicant's plea of guilty and assistance, and most of all the separate and consecutive sentences warrant the intervention of this Court.

10. Applying a similar order of discount by reference to the aggregate amount of drugs, but upon a broad common sense approach, which we think better calculated to serve the interests of justice than an inflexible mathematical approach, we conclude that a sentence of 5½ years would be appropriate. We accordingly grant the application for leave, treat the hearing of that application as the hearing of the appeal, allow the appeal and achieve a totality of 5½ years by ordering that only 2½ years of the sentence on the 2nd count be consecutive to that on the 1st count.