HKSAR v. WOO CHUNG HING

CACC 19/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 19 OF 2002

(ON APPEAL FROM DCCC 1015 OF 2001)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1. The Applicant, Woo Chung Hing, faced two charges of trafficking in dangerous drugs having a narcotic content of 8.25 grammes and 7.2 grammes of heroin hydrochloride respectively. He pleaded guilty to these charges before His Hon Judge Line in the District Court on 17 December 2001 and was sentenced to serve consecutive sentences of 2 years' imprisonment in respect of the first charge and 2 years and 8 months' imprisonment in respect of the second charge, making a total of 4 years 8 months' imprisonment. A one-third discount was given in respect of both sentences to reflect the Applicant's guilty pleas.

2. The Applicant applies for leave to appeal against those sentences; Mr Giles Surman, of counsel, represents him.

The facts

3. At around 7.30 a.m. on 17 August 2001 the Applicant was seen by a party of police officers on an anti-dangerous drugs operation walking along Yuk Kwan Street towards the Sir Robert Black Clinic in Wong Tai Sin. He appeared to be very nervous. Two police officers stopped him at the entrance of the Methadone Clinic at the Sir Robert Black Clinic and revealed their police identities. He was searched and the drugs particularized in the first charge (18.05 grammes of a mixture containing 8.25 grammes of heroin) were found in the left rear pocket of his trousers. The Appellant was arrested for trafficking in a dangerous drug. When interviewed after caution, he made admissions in relation to that offence.

4. About, three weeks later, on 8 September 2001, while the Applicant was on police bail for the first offence, he was seen by the same two police officers who had arrested him for the first offence, again near to the Sir Robert Black Clinic in Wong Tai Sin. The Applicant was walking quickly along Prince Edward Road East and as he did so he kept looking around. The two officers stopped him outside the Caltex Petrol Station on Prince Edward Road East. They revealed their police identities and searched the Applicant, and found the drugs particularized in the second charge (18.04 grammes of mixture containing 7.2 grammes of heroin) in the left rear pocket of his trousers. The Applicant was arrested for trafficking in a dangerous drug and, after caution, he made admissions in relation to that offence.

Antecedents

5. Prior to this present case, the Applicant had 21 previous convictions, of which 17 are drug-related. He has one previous conviction for trafficking in dangerous drugs, for which he received a sentence of 12 months' imprisonment in June 1999. He is 36, having been born in April 1966.

Grournds of Appeal

6. Mr Surman makes no criticism of the starting point sentence that the Judge adopted in respect of each of the two charges of 3 years' imprisonment for the first charge and 4 years' imprisonment for the second charge. Neither does Mr Surman make any criticism of the Judge's statement of sentencing principle that "... people who commit offences on bail must expect the second offence to be consecutive"; or of the general sentencing principle that separate offences committed on different days should attract consecutive sentences.

7. However, he says that the Judge erred in respect of totality and that the total sentence of 4 years and 8 months' imprisonment passed upon the Applicant was not only manifestly excessive, but that the Judge erred in principle by suggesting that the total weight of the narcotic content of the heroin covered by both charges should be considered together, commenting that when added together "...it puts you in the right place on the next band up in the guideline." And also that the Judge erred in appearing to rely on the fact that the Applicant committed the second offence whilst on bail for the first in ordering the sentences to run consecutively, when he had already relied on that fact to increase the sentence on the second charge.

8. With respect to Mr Surman's able argument, we do not agree. Following the guidelines set out in R v Lau Tak Ming [1990] 2 HKLR 370 the weight of the narcotic content in both charges placed the Applicant at risk of receiving an after-trial sentence of up to 5 years' imprisonment for each; as each offence fell, for sentencing purposes, into the first of the suggested sentencing tariff bands of up to 10 grammes of narcotic. He had committed two separate and distinct trafficking offences on different days and, as Mr Surman fairly conceded, as a matter of sentencing principle consecutive sentences were called for. The Applicant had committed the second offence whilst on bail for the first and that, it is well established, is a factor that goes to aggravation of sentence. Apart from his pleas of guilty, which the Judge properly recognized, the Applicant had no mitigation at all; as the Judge clearly appreciated he is a persistent offender.

9. We can see no reason why the Judge should not have passed wholly consecutive sentences on the Applicant. The individual length of each of those sentences is not manifestly excessive, neither is the total length of time that the applicant will spend in prison for them. The Applicant only has himself to blame for the fact that, even after giving credit for the guilty pleas, he will be in prison for a period of time more commensurate with the second of the Lau Tak Ming tariff bands. Neither he, nor we can escape from the fact that when the narcotic contents of both charges are added together, it shows that on two occasions in less than a month he was found trafficking in heroin having a total narcotic content of 15.45 grammes.

10. The Applicant's application for leave to appeal against sentence is refused.