ATTORNEY GENERAL v. CHEUNG PIT YIU

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application by the Attorney General to review sentences passed on the 14th June by Judge Roy upon Respondent Cheung Pit Yiu in respect of 2 charges of possession of dangerous drugs for the purpose of unlawful trafficking to which the Respondent had pleaded not guilty, but had been convicted after due trial., The judge imposed sentences of 3 years and 18 months respectively to run concurrently with each other and also to run concurrently with what he had been told by the Defendant's own solicitor was a sentence of 3½ years imposed in the District Court on the 1st March for a similar offence which had taken place in January.

2. The convictions by Judge Roy arose from a transaction in King George V Park in Kowloon, observed by Customs Officers from a nearby rooftop, which at first blush gives the impression of a routine sale by a street pedlar to an addict. The curious feature of the transaction however were that the apparent customer turned out to be, for all practical purposes, the Respondent's wife and that the amounts of money and drugs handed over were much larger than would have been expected in those circumstances. The judge came to the conclusion, correctly in our view, that the Respondent and his wife were acting jointly, he looking after the stock while she acted as his courier.

3. In passim sentence the judge observed that although Section 68 of the Criminal Procedure Ordinance enables the High Court to pass what might be conveniently termed overlapping sentences, Section 82 of the District Court Ordinance limits the possibilities in that court to sentences that are simply concurrent or consecutive. We do not understand why there should be such a distinction between the 2 levels of jurisdiction and it is perhaps time consideration was given to its removal.

4. In the circumstances the judge felt that to pass consecutive sentences would lead to a total length of imprisonment that would be too heavy, and also that the 2 occasions were sufficiently close in the matter of time to justify concurrent sentences.

5. Unfortunately the information which had been given to the judge below was not strictly accurate. The Defendant's solicitor is hardly to blame. The real fault lies with counsel who then prosecuted for the Crown in failing to provide the Court with a criminal record for the Respondent that was up to date. The true fact was not that the Respondent had received a sentence of 3½ years for one offence tried in the District Court. It was that he had received lesser sentences for 2 offences tried separately in the Magistrate's Court. Both had been offences for the possession of dangerous drugs for the purposes of unlawful trafficking. The first sentence, one of 2 years, tags imposed on the 1st March for an offence that took place on the 7th January. The second, of 18 months, was imposed on the 6th April, for an offence that had taken place even earlier, i.e. on the 23rd December the year before. The second sentence was ordered to run consecutively to the first, thus making. in all the 3½ years that the judge had been told, and taking effect in all from the 1st March, as again the judge had been told.

6. This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly he said to have been committed in the course of a single transaction. That can hardly be said of offences involving the possession of drugs, as the judge below correctly believed, on occasions which occurred in separate months, We agree therefore with the submission of Mr. Cross, who now appears for the Attorney, that the concurrent sentences in fact passed below would he wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishment should be imposed.

7. That however is a conclusion we find ourselves unable to accept. Apart from the cases we have just mentioned, the Respondent has a criminal record which goes back over 20 years and includes 8 appearances in court in involving drug offences. There were no redeeming factors of any kind. The situation inexorably called for an increase over the earlier 3½ years. We think that in all the circumstances a further 2½ years would not have been inappropriate.

8. However, Mr. Frank Wong, who now appears for the Respondent, contends that even though we take that view, we must nevertheless refuse the present application. He refers to the powers of this Court set out in Section 81B of the Criminal Procedure Ordinance and in particular to subsection (3) which provides -

"for the purposes of this section the Court of Appeal may exercise any of the powers conferred by Section 83V".

9. Section 83V enables this Court to receive fresh evidence - in this instance, says Mr. Wong, evidence as to the true state of the Respondent's record. He does not object to that. He relies instead on subsection (5) which provides -

"In no case shall any sentence be increased by reason of or in consideration of any evidence which was not given at the trial."

10. With every respect to a well presented argument we have not come to our conclusion "by reason of or in consideration of" new evidence. We are content to base our decision on the evidence as it was before the judge below. That was perhaps more favourable to the Respondent than the true state of affairs, for it indicated only one rather than two previous offences. But certainly it was in no way detrimental to him. We are satisfied therefore that the jurisdiction given by Section 81B is unaffected and that we ought, for the reasons we have just given, to allow the review and vary the sentences accordingly. It is customary to make some discount for the nature of these proceedings and we propose to substitute a total figure of 5 years. The most convenient way of achieving that end, and one which is not wholly inappropriate, having regard to the amounts of the drug involved, is to substitute a sentence of that length in respect of each charge, to run concurrently with each other, and concurrently with the sentences which the Respondent is presently serving. That we now do.