THE QUEEN v. CHAN KIM CHAU

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. This applicant is involved in two appeals - Appeal No. 438 of 1990 in which he appears in person, and Appeal No. 501 of 1990 in which he is represented by Mrs. Panesar.

3. The first appeal involves the sentence on four charges to which he pleaded guilty before Deputy Judge Candy in the District Court. The first charged that, together with another person SUNG Wai-shan, he was in possession of 1.38 grammes of a mixture containing 1.19 grammes of salts of esters of morphine for the purpose of unlawful trafficking; the second against the applicant and the same named person, alleged that they had in their possession 8.5 grammes of cannabis for the purpose of unlawful trafficking; the third against the same two persons, alleged possession of apparatus fit and intended for injecting dangerous drugs at the same location; the fifth against four accused including the applicant, alleged possession of 40.43 grammes of a mixture containing 35.5 grammes of salts of esters of morphine for the purpose of unlawful trafficking at the same location. All charges involved the premises at Flat E, Yue Man Centre, Ngau Tau Kok, Kowloon.

4. The facts upon which the prosecution relied revealed that a party of police arrived at the premises occupied by two young women, who were two of the defendants charged, and the applicant and another young man, who were the boyfriends of the two young women. In the bedroom, which was occupied by the applicant and the woman who was the 1st defendant, was found the No. 4 heroin the subject of the first charge, the cannabis the subject of the second charge, and the three syringes the subject of the third charge. In the living room the larger amount of No. 4 heroin which was the subject of the fifth charge was found.

5. The applicant was sentenced to 18 months on the first charge, 12 months on the second charge, one month on the third charge, and on the fifth charge which involved the larger amount to four years and six months. The judge ordered that all sentences be concurrent. The applicant now appeals against those sentences.

6. The trial judge in his Reasons said:

"D2 (i.e. the applicant) has admitted all offences. Of these charges 1, 2 and 5 are under Section 7 and charge 5 is the most serious having regard to the quantity involved. Although D2 is, I'm told, a drug dependant, he did enter upon what appears to have been a conscious decision to sell drugs to support his living and his own habit. D2 has a previous conviction for dangerous drugs offences. Applying the guidelines in Reg. v. Lau Tak-ming Cr. App. 230/89, the sentence on charge I would be 2 - 5 years and on charge 5 would be 5 - 8 years.

 

        The quantity involved in charge 1 is towards the lower end of the scale but the quantity in charge 5 is towards the higher end of the scale. Charges 2 and 3 are in a different category as regards gravity.

 

        The only mitigation which can affect D2 is his plea of guilty to the charges and the fact that he's a drug dependant. I therefore assume that at least some of the dangerous drug was for his own consumption."

The trial judge was applying the guideline set out in R. v. Lau Tak-ming to two of the charges. The decision in that case was on 29th May 1990. As this offence occurred on 16th February 1990, the trial judge was wrong in applying those guidelines. The guidelines then applicable to cases involving No. 4 heroin were set out in R. v. CHENG Yeung [1989] 2 HKLR 258.

7. The real question which faces us with regard in this case is whether the sentence of four and a half years on the fifth charge was too severe. While the trial judge wrongly applied the guidelines Lau Tak-ming, we are satisfied that, even applying the most favourable rate of conversion of the No. 4 heroin to No. 3 heroin, the starting point for the assessment of sentences applicable under the then prevailing guidelines would clearly fall within the bracket of five to eight years used by the trial judge. Further, Mrs. Panesar who appears on the second appeal, but who has made reference to the facts of this first appeal, does not suggest than any issue can properly be taken with the sentences in the first appeal.

8. Appeal No. 501 of 1990 involves one charge of possession of dangerous drugs for the purpose of unlawful trafficking. It was alleged in that charge that the applicant had in his possession 25.57 grammes of a mixture containing 24.04 grammes of salts of esters of morphine for the purpose of unlawful trafficking in Tung Lung Road. Again this was No. 4 heroin. He was stopped and searched, while on bail on the other charges, and the dangerous drugs were found upon his person. He pleaded not guilty to that charge. He had, however, been prepared to admit possession of the dangerous drugs. He was, in the outcome, found by Deputy Judge Z.E. Li in the District Court not to have displaced the presumption of unlawful trafficking which arose because of the quantity involved and was convicted after trial and sentenced to five years imprisonment. He now appeals against that sentence.

9. The trial judge said when sentencing him:

"As this offence was committed in July 1990, the guidelines laid down in The Queen v. LAU Tak-ming, Criminal Appeal No.230 of 1989 must apply. For the quantity involved, I used the starting point of 6 years. I allowed a discount of 1 year for admission of possession; I felt that that is already very, very generous."

We agree with the trial judge that the allowance of one year for the admission of simple possession was, given the plea of not guilty to the charge of possession for the purpose of unlawful trafficking, indeed "generous". The trial judge went on to say:

"The defendant's counsel urged me to order the sentence to run concurrent with the current four and a half year term he is serving. I see no justification for that. Obviously the defendant committed the present offence whilst still out on bail for the offence in January 1990. He cannot say he did not know the risks and consequences involved. To impose a concurrent sentence in this situation would be laying down a law of diminishing punishment for successive offences.

 

        Standing back to look at the totality, it will be seen that the aggregate quantity of salts of ester of morphine involved in the two successive offences is very nearly 60 grammes. This takes the defendant to the next, higher bracket of 8 - 12 years imprisonment in the tariffs. The consecutive sentences add up to nine and a half years, about the same length as if the defendant was caught once with one big bulk of 60 grammes of salts of ester of morphine."

10. Mrs. Panesar urges that the totality of nine and a half years was excessive. She refers to the passage which I have just read in which the trial judge states that the "consecutive sentences add up to nine and a half years about the same length as if the defendant was caught once with one big bulk of 60 grammes of salts of ester of morphine". She suggests that the trial judge here misled himself as he was, in effect, wrongly taking a starting point equivalent to twelve years after trial. She suggests that he overlooked the necessity for a discount required by the fact that the applicant had, at least with regard to the first set of offences, pleaded guilty. She suggests that, even when one bears in mind the fact that the second offence was committed while on bail for the first offence, the starting point should have been about nine years.

11. Mr. Saw for the Crown submits that the overall criminality must be taken into account and that this is exactly what the trial judge was doing when he imposed the consecutive sentence of 5 years imprisonment. He submits that there were two quite separate serious drug offences the second of which was aggravated by virtue of the time of its commission. Mr. Saw submits that when the trial judge made reference to the sentences which might have been imposed for the overall quantity he was doing no more than using that as a check to see that his overall sentence was not out of line with the sentence that would have been indicated had the guidelines been applicable to the total quantity. He points out that before making any reference to the sentence appropriate for "one big bulk", the trial judge had already indicated the sentence which he considered was appropriate for the offence with which he was dealing.

12. We take into account that the second offence was a serious offence, that it was committed while he was on bail, and that a generous discount was given for the admission of simple possession.

13. Having done so, we are satisfied that the totality of nine and a half years was not excessive and both applications for leave to appeal against sentence are therefore dismissed.