HKSAR v. AU SIU MING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.347
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 1st June 1998, the Applicant pleaded guilty before Judge Wilson in the District Court to one charge of possessing and two charges of trafficking in heroin hydrochloride. The mixture in each charge contained very small quantities of the narcotic substance.

2. The case could not have been more simple or straightforward and the Reasons for Sentence reflect this. It will only take a moment to read these out. It is necessary to do so in order to make proper sense of the grounds of appeal. The judge said:

"This defendant has pleaded guilty...... He was caught red-handed when he sold small quantities of heroin to an undercover officer on two occasions two days apart.

He is aged 49 years and has 25 previous convictions, many of them drug-related. He was sent to the treatment centre in 1997 but has unfortunately relapsed to drugs since his discharge. A further treatment centre report is before me which says that he would again be acceptable to the centre and that is the course I am urged to adopt.

Although I have no medical report he is said to suffer from diabetes and a kidney ailment.................

Although the amounts involved in the case were small, I cannot overlook that the defendant was prepared to sell to any passing stranger in the street. I regret I think the situation is too serious for me to consider the treatment centre.

On charge 3, the sentence is 18 months' imprisonment; charge 4, 18 months' imprisonment; charge 5, 3 months' imprisonment. All those sentences are to be consecutive to one another, making an effective total of 3 years and 3 months' imprisonment.

I direct that the defendant be examined by the Correctional Services doctor with reference to his diabetes and kidney problem."

3. At that point in the transcript, the judge asked the prosecutor whether there was anything else. The prosecutor replied that there was not. The judge then thanked counsel in the case, and at that point the defendant interrupted by saying, "I have got something to say to Your Honour." The judge indicated that instructions should be taken as to what it was and when defending counsel came back to the Bar table he said, "Yes, Your Honour, he said that he has pleaded guilty and there should be a one-third discount and it would be unreasonable to sentence him to 3 years and 3 months." The judge replied, "Well, for the record in fact he is quite right. I should have said that I have taken into account his pleas of guilty in assessing sentence. Thank you gentlemen."

4. The Applicant's inquiry in the court below, having been sentenced, was entirely justified in the view of this court. Despite the numerous occasions on which this court has said in cases of this kind, however simple or straightforward they may be, that a starting point should be clearly stated so that a defendant is aware of the extent of the credit accorded to him for matters raised in mitigation, the trial judge has nevertheless failed to give any starting point. A defendant is entitled, as a matter of fairness to him, to know what sentence he would have received following a contested trial so that he can see for himself that he has been given the full discount to which he is entitled following his plea, and so that this court can properly review the sentence.

5. This conveniently leads to the grounds of appeal.

6. The first ground is that the sentencing judge erred by failing to follow the recommendation of the Treatment Centre Report, which concluded that the Applicant was a drug dependant, that a period of compulsory drug treatment would be helpful to him, and that he was suitable for admission to the Centre.

7. We can say immediately, bearing in mind the circumstances of this case and the background of this Applicant, that we do not see any substance in the argument that a prison sentence was inappropriate. On the contrary, it was the only sensible course. The Applicant is a hardened addict who has, in very recent times, attended a drug addiction treatment centre and has relapsed once more into his old ways. He is a most unlikely candidate to respond to future treatment.

8. With regard to the second ground of appeal, Mr. Buchanan, on behalf of the Applicant, has rightly submitted that the judge failed to indicate the appropriate starting points for sentencing. He argues that the totality of sentence, namely 3 years and 3 months, was too high and failed properly to reflect the entitlement of this Applicant to a one-third discount so that, in the circumstances, the sentence was excessive.

9. As the trial judge omitted to indicate any starting points, we have, therefore, had to consider with care the appropriate starting points for these offences as a completely fresh exercise to see whether the sentences imposed were correct.

10. The total weight of heroin in the mixture supplied to the undercover officer came to 0.68 gm., and the weight in the mixture in his possession on the last charge was 0.57 gm. Whilst the amounts were small, he gravity of offences of trafficking in heroin cannot be overlooked. In the Applicant's case, he was a street-seller of drugs who was, as the judge had remarked, prepared to sell to any passing stranger.

11. In the guidelines provided in R v Lau Tak-ming, (1990) 2 HKLR 370, this court suggested that for amounts of up to 10 grammes of heroin, the tariff should be between 2 to 5 years' imprisonment. Here, with each offence of trafficking involving approximately one-third of a gramme, we consider that the lowest end of that scale would have been appropriate. As these were separate and distinct offences, there was ample justification for the imposition of consecutive sentences amounting, therefore, in total to 4 years' imprisonment on charges 3 and 4.

12. For the offence of possession, it is again impossible to say what starting point the judge adopted because, although he had stated that the 3 months' sentence he imposed took into account the plea, this would seem to indicate the unlikely starting figure of 4 1/2 months before giving a discount. We think a period of 9 months' imprisonment would have been a proper starting point making 4 years and 9 months in total. Having regard to totality, we consider overall that the sentences should have been 4 years' imprisonment following a trial. Making the normal reduction for plea of one-third, this would leave a sentence of 2 years and 8 months.

13. We propose, therefore, to grant leave to appeal for the reason that the sentences imposed failed to reflect the discount to which this Applicant was entitled.

14. Treating this hearing as the appeal, we shall order the substitution of sentences of 16 months on charges 3 and 4, and, on charge 5, that a concurrent 6 months' sentence should be imposed.

15. Treating this hearing as the appeal, we make a reduction of the total sentence from 3 years and 3 months to 2 years and 8 months. To this extent, the appeal is allowed.