HKSAR v. TANG CHI CHONG

CACC 46/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 46 OF 2002

(ON APPEAL FROM HCCC 394 of 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 On 23 June 2001 the applicant was searched by the police after he emerged from a flat in Hunghom. Four packets of drugs were found on his person. This formed the basis of the first charge for which he was committed to the High Court for sentence, namely, trafficking in 27.65 grammes of a mixture containing 24.97 grammes of heroin hydrochloride. He was taken then to nearby premises, to a room which was his, and there was found 44 packets of heroin as well as paraphernalia for the packaging of drugs. The applicant admitted that this find represented, as had the first, drugs which he had intended to sell. It was the basis of the second charge, that is, trafficking in 326.62 grammes of a mixture containing 304.70 grammes of heroin hydrochloride. As this summary of the facts implies, the applicant had pleaded guilty before the magistrate. He appeared for sentence in the High Court on 22 January 2002.

2 On the first charge, the judge took a starting point of 9 years' imprisonment, and sentenced the applicant to a term of 6 years' imprisonment giving him credit for his early plea. The judge seems here, in error, to have directed himself to the next sentencing bracket or range, as it were, in Lau Tak Ming [1990] 2 HKLR 370. The appropriate starting point should have been 6 years' imprisonment, with a resulting sentence of 4 years' imprisonment.

3 As to the second charge, the judge took a starting point of 14 years' imprisonment, about which the applicant, through his counsel, Mr Poll, makes no complaint. But the judge, having said that the normal reduction in sentence was warranted for the plea and cooperation with the police, rounded matters down to 10 years' imprisonment which does not quite reflect the one-third discount which was warranted. Where less than the full discount is to be given, one would look for the provision of some reason, which was not given in this case, and it seems that the judge took a broad approach but did not in the event reflect what he had clearly intended to reflect. The resulting sentence on this charge should have been 9 years and 4 months' imprisonment.

4 In these circumstances, we grant the applicant leave to appeal against sentence, treat this as the hearing of the appeal, set aside the sentences imposed below, and substitute for the sentence on the first charge a sentence of 4 years' imprisonment; a sentence on the second charge of 9 years and 4 months' imprisonment; and order that they run concurrently, making a total of 9 years and 4 months' imprisonment.