HKSAR v. AU KWOK CHAI

HCMA410/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 410 OF 2008

(ON APPEAL FROM KCCC 14 OF 2008)

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J U D G M E N T

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1. The appellant in this matter, Au Kwok Chai, aged 53 years faced the following two charges. 

2. The 1^st charge was trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 Laws of Hong Kong.  The particulars were that on 24 December 2007, outside no. 18 Fuk Tsun Street in Mong Kok in Kowloon, he unlawfully trafficked in a dangerous drug, namely two packets containing a total of 0.32 grammes of a mixture containing 0.26 grammes of heroin hydrochloride.  

3. The 2^nd charge was also trafficking in dangerous drugs.  The particulars of that charge alleged that on 1 January 2008, outside no. 18 Fuk Tsun Street, Mong Kok, Kowloon in Hong Kong, he unlawfully trafficked in a dangerous drug, namely five packets containing a total of 0.87 grammes of a mixture containing 0.45 grammes of heroin hydrochloride. 

4. The appellant pleaded guilty.  On Charge 1, he was sentenced to a period of imprisonment for 16 months and on Charge 2, a period of imprisonment also for 16 months.  The magistrate, having heard the mitigation on behalf of the appellant, ordered that the two sentences run consecutively resulting in a sentence of imprisonment of 32 months. 

5. This is the appellant’s appeal against the length of those sentences.  

6. The summary of facts revealed very simple and straightforward transactions.  On 24 December 2007 about 1:22 p.m., a police officer posing as a buyer made a controlled purchase of the dangerous drugs in Charge 1 from the appellant.  For the drugs referred to in the particulars of that charge the appellant was paid the sum of $400. 

7. As to the particulars of the 2^nd charge.  On 1 January 2008.  About 8:30 p.m., the same police officer again posing as a buyer made a controlled purchase of dangerous drugs from the appellant.  On that occasion the police officer paid him the sum of $100.  It was after this transaction that other police officers arrested the appellant and the marked money that had been used in that purchase was recovered. 

8. In passing sentence the magistrate observed that since 1974, the appellant had made something in the order of 20 previous court appearances that had led him to be convicted of 36 offences.  Ms Grace Chan, SGC in her helpful submissions points out that in the period 1984 to date, 19 of those convictions had been related to dangerous drugs.  A perusal of the appellant’s criminal record makes it abundantly clear that he is unquestionably aware of the penalties that are provided for those who traffick in dangerous drugs. 

9. In 1988, he was sentenced to be imprisonment for 6 years for trafficking in dangerous drugs.  In October and December 1995, he was sentenced to 5½ years for trafficking in dangerous drugs.  In April 2002, he was again sentenced to a period of imprisonment for trafficking in dangerous drugs.  Similarly again in 2005, he was again sentenced to a period of imprisonment for trafficking in dangerous drugs.  He was last released from prison on 9 July 2007.  These offences were committed some five months later.  

10. The magistrate carefully considered the matters that were advanced on the appellant’s behalf in mitigation by his counsel.  Amongst those was a fact that the offences involved the use of an undercover police officer.  The magistrate was, quite rightly in my opinion satisfied that in the circumstances of this case that made little difference.  The magistrate was satisfied that the appellant was ready and willing to sell dangerous drugs to any person who came his way.  The magistrate found, that the appellant had been involved in the commercial supply of dangerous drugs to an undercover police officer. 

11. The magistrate observed that the quantity of narcotic in each charge brought it within the first band of sentencing guidelines established in R. v. Lau Tak Ming & anor [1990] 2 HKLR 370.  That is to say that for a person trafficking in a quantity of heroine hydrochloride up to 10 grammes the starting point for sentence to be adopted should range from two to five years’ imprisonment.  This is what the magistrate found to be appropriate in this case.  A starting point of two years was adopted and a credit of a full one-third for his plea of guilty was given to him.  This resulted in a sentence on each charge of 16 months’ imprisonment. 

12. The magistrate then gave careful thought to whether he should make the sentences on the two charges wholly or partly concurrent.  He declined to do this.  He said the reality was the appellant was willing to sell dangerous drugs to anyone who could meet the price he was charging.  In those circumstances the two offences were wholly separate and discrete and warranted consecutive sentences.  I agree with the conclusions the magistrate reached.  The appellant was fully aware of the criminality of the offences he was committing.  On the two occasions which were referred to the particulars of these two charges he chose to sell the drugs he did.  He was all too familiar with the penalties that were imposed for offences of this type.  In all the circumstances, I am satisfied the sentence is neither manifestly excessive or wrong in principle and the appeal is dismissed.