HKSAR v. CHUNG YIU MING

CACC6/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.6 OF 2003

(ON APPEAL FROM DCCC NO.889 OF 2002)

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REASONS FOR JUDGMENT

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Tong J (giving the reasons of the Court) :

1. On 7 October 2003, we granted the applicant leave to appeal, out of time, against sentence and, treating the hearing of the application as the appeal, we allowed the appeal and substituted for a total term of eight and a half years' imprisonment imposed by the court below a total term of seven years' imprisonment. Our reasons now follow.

2. The applicant was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The drugs involved was 14.80 grammes of heroin hydrochloride. The applicant pleaded not guilty. The case was heard in the District Court by Deputy Judge Yip who found the applicant guilty after the trial. On 16 December 2002, the applicant was sentenced to five years' imprisonment and the term was ordered to run consecutively to the sentence currently served by the applicant for another offence, making a total of eight and a half years.

3. On 3 January 2003, the applicant filed a notice applying for leave to appeal against his conviction, but it appeared that he had decided not to pursue that appeal as he had written in his letter dated 22 May 2003 that :

"Due to some misunderstanding, I, CHUNG Yiu-ming, had lodged an appeal against conviction. I didn't lodge an appeal against sentence until the case was over. I have now cancelled the previous appeal. My legal representative has written to the Legal Aid to state that I had grounds to appeal against sentence. The Legal Aid has in turn written me back to inform me that I have grounds to appeal against sentence. I hope that the Court of Appeal of the High Court would accept my application for appeal against sentence."

In a way, the explanation advanced in this letter for the delay in launching the appeal of sentence was not a particularly cogent one, but we have nonetheless determined to grant leave.

4. Regarding the merits of the case, Mr Peter Duncan, acting for the applicant, raised only one point of principle in the perfected grounds of appeal, i.e. that the learned judge in ordering the sentence for the present offence to run wholly consecutively to that imposed for the sentence in the earlier District Court case (to which we shortly refer) had failed to apply the totality principle to the present sentence and that in the circumstances, the sentence passed was manifestly excessive.

5. The sentence imposed by the District Court in the previous case of DCCC726/2002 was three and a half years. In that case, the applicant was the 2nd defendant. There were altogether 11 charges of which three related to the applicant and they were also trafficking in dangerous drugs cases. The applicant had pleaded not guilty and was convicted by a different deputy judge after trial. The evidence showed that the applicant had sold packets of heroin to an undercover police officer on three separate occasions in March 2002 at a grocery store in Tsuen Wan. The quality of heroin on each occasion was 0.07, 0.06 and 0.07 grammes respectively. In the present case, the circumstances were that on 7 April 2002, the police had raided the same store and the applicant was found inside the loft of the shop where two bags and six straws of heroin were also discovered by the police. The applicant had made admissions to the effect that he would take the drugs back to China for his own consumption.

6. On the issue of totality, the deputy judge simply stated in his Reasons for Sentence :

"	4.	I have looked at the case file of DC726/02. The same grocery store was involved. There the defendant was found to have sold dangerous drugs on 3 occasions from it. Those were entirely separate transactions, which bore no relationship to the present offence except that the drugs all came from the same grocery store. That can hardly be a reason to reduce the sentence based on totality.
	5.	I see no reason to order a discount based on totality. Five years is the sentence that I now impose on the defendant. It shall run consecutively to the term under DC726/02."

7. It was not correct to say that the earlier transactions had no relationship to the present offence. It is clear that the applicant used these premises to store the drugs which he sold, or carried, on all occasions with which we are concerned, and the offence on 7 April followed shortly after the others. They were all indeed separate offences on separate occasions and in principle merited consecutive sentences. However given the facts, these are cases which ought to have been dealt with by the same court. Had they been, we doubt whether a total of eight and a half years' imprisonment would have been reached. As a totality we consider that to be clearly excessive. Mr Duncan is not correct, strictly speaking, when he says that the judge failed to apply the totality principle; for the judge purported to address it. Rather, he did not apply it appropriately in this case.

8. For these reasons we thought it right to grant leave to the applicant to appeal his sentence out of time. We allowed the appeal and quashed the order of consecutive sentence. We substituted an order that one and a half year of the five-year term should run concurrently with the sentence in DCCC726/2002 and the rest to run consecutively. Hence the total sentence for these two cases would be seven years.