HKSAR v. FUNG SHUN KWAI

(ENGLISH TRANSLATION)

HCMA 531, 532 & 533/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 531, 532 & 533 OF 2000

(ON APPEAL FROM NKCC 1013, 1369 & 1908 OF 2000)

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JUDGMENT

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1. By three separate cases, NKCC 1013, 1369 and 1908 of 2000, the appellant was charged with a total of three counts of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong.  The appellant pleaded guilty to all the charges and was sentenced to imprisonment for 2 months, 14 months and 14 months respectively, with 8 months of the term for the third charge to run concurrently with the term for first charge, making a total term of 22 months.  Furthermore, as the appellant had been sentenced to 3 months’ imprisonment but suspended for 2 years in another case, NKCC 3031/1998, the magistrate ordered that 2 months of the suspended sentence be activated.  The appellant was therefore sentenced to a total term of 24 months.  He now seeks leave to appeal against sentence on the ground that it is manifestly excessive.

2. The facts of the three cases which formed the subject of this appeal were that, on 8 February, 21 February and 2 March of this year, the appellant was intercepted and questioned by the police in Shamshuipo.  Upon search, dangerous drugs ― namely 0.11 grams, 9.59 grams and 9.92 grams of heroin, respectively ― were found in the appellant’s possession.  On each occasion, the appellant admitted that the dangerous drugs were his.  As a matter of fact, the Drug Addiction Treatment Centre report stated that the appellant was a drug addict.

3. The magistrate, when passing sentence, had taken into account the weight and quantity of dangerous drugs involved in each case, particularly the fact that the second and third charges each involved some 30 small packets of dangerous drugs.  Applying two Court of Appeal cases, CHAN Yat Shing, CA 777/1997 and NG Chi Leung, CACC 332/1999, the magistrate held that, for the offence of possession of dangerous drugs, a relevant sentencing consideration was the latent risk factor in the dangerous drugs being possessed.  In my judgment, the magistrate properly took this factor into account.  Notwithstanding that a defendant may be possessing dangerous drugs for self-consumption, where a large quantity and number of packets are involved, the latent risk is that the defendant may under various circumstances be tempted to share the dangerous drugs with others or traffic in those drugs apart from consuming the drugs by himself.  The court must therefore take this risk into account for sentencing purposes.

4. Having taken this factor into account and referred to other authorities such as CHIU Hung Wong CA 39/1999 and TANG Hiu Tung, MA 203/1996, the magistrate said (see page 15 of the transcript):

In light of the sentences imposed in the above cases, I adopt 15 months as the starting point for each of the two cases involving 30 packets and, taking into account the latent risk posed by as large a quantity as 30 packets, increase each sentence by 6 months.  Giving the defendant ⅓ discount [by reason of his guilty plea], each sentence is then reduced to 14 months.  However, as the defendant committed the offences while on bail, one month is to be added to each sentence, following the sentencing principle in LEUNG Ka Ming (supra.).  Therefore, the term of imprisonment is 15 months for each charge.  In fact, whether viewed by reference to the quantity of the drugs involved or by reference to the number of packets, this sentence is already more lenient than that imposed in the aforesaid case of TANG Hiu Tung.

As for the first charge, in view of the small quantity of drugs and small number of packets involved, I adopt 3 months as the starting point and impose a sentence of 2 months’ imprisonment.

The total term of imprisonment for the three charges is 32 months.  Applying the totality principle, part of the sentences will run concurrently as mentioned, thereby reducing the term to 22 months.

5. Here, with respect, the magistrate erred.  Firstly, on page 1 of the Reasons for Sentence (i.e. page 12 of the transcript),  the magistrate expressly stated that the appellant was sentenced to 14 months’ imprisonment in each of the two cases NKCC 1013/2000 and NKCC 1908/2000, and to 2 months’ imprisonment in NKCC 1369/2000, making the total term 30 months.  This was inconsistent with what the magistrate said on page 15 of the transcript (quoted above).  I shall take the terms of 2 months, 14 months and 14 months as the basis of consideration.  Secondly, it was incorrect for the magistrate to compute the terms of sentence using the abovementioned mathematical formula.  He should first have adopted an appropriate starting point by taking into account the relevant circumstances of the case (including aggravating features) and referring to guidelines of the Court of Appeal or other authorities; and then arrived at an appropriate sentence by considering all mitigating factors.  Where a case involves two or more charges, the magistrate has to consider the sentence for each charge and whether the terms are to run concurrently or consecutively, and make adjustment in accordance with the totality principle.

6. In the present case, the sentence for the first charge appears to be inadequate.  Although the dangerous drugs involved only weighed 0.11 grams, the sentence should be slightly heavier, which means the starting point should be 6 to 9 months instead of 3 months.  As for the second and the third charges, in light of the decided cases and in view of the quantity and number of packets of the dangerous drugs, a sentence of 15 months’ imprisonment for each charge is appropriate.  However, the appellate court is concerned with the overall sentence rather than the computation of each sentence.  As regards the overall sentence, the fact that the appellant committed one offence after another within two months should, as the magistrate correctly pointed out, be regarded as an aggravating factor.  Nevertheless, given the appellant is a drug addict, it would not have been unusual for him to buy dangerous drugs from time to time for self-consumption, and it was for this reason that the dangerous drugs involved in the three charges were bought on three separate occasions.  Having said that, the total weight of the dangerous drugs involved was approximately 19 grams and, on the basis of the decided cases, if the charges were dealt with together, a total term of 24 months’ imprisonment would, in my judgment, have by and large been appropriate.  Therefore, the sentence of 22 months’ imprisonment imposed by the magistrate cannot be regarded as manifestly excessive.

7. The appellant had, in another case, been sentenced to 3 months imprisonment but suspended for 2 years.  On page 16 of the Reasons for Sentence, the magistrate had this to say:

Regarding the activation of the suspended sentence, the defendant was obviously aware of the legal implications of a suspended sentence.  On 14 June 1999 when he was sentenced for another offence of ‘possessing’ dangerous drugs, the then magistrate did not activate the suspended sentence.  This, however, does not render the suspended sentence void.  In my view, as the defendant committed one offence after another, the suspended sentence must now be activated.  However, in light of the aforesaid special circumstances, only 2 months of the 3-month sentence will be activated.  The defendant is therefore sentenced to imprisonment for a total of 24 months.

8. I believe that when the magistrate who dealt with the other case of the appellant on 14 June 1999 decided not to activate the suspended sentence, he must have done so for good reasons.  In the present case, the magistrate simply concluded that the suspended sentence must be activated because the appellant had committed one offence after another.  However, the record shows that the appellant was at that time convicted of selling counterfeit goods with forged trademarks ― an offence which was completely different from the offences in the present case.  Furthermore, the suspended sentence in question was imposed on 14 May 1998, and, by the time of trial of the present case, the 2-year term of the suspended sentence was about to expire.  The appellant said that the suspended sentence had two days to go before expiry.  In the circumstances, I am of the view that the magistrate erred in activating the suspended sentence.  The activated term must therefore be set aside.

9. In light of all the above factors, the overall sentence of 22 months’ imprisonment for the three offences is proper.  The appeal against this sentence is therefore dismissed.  On the other hand, the appeal against 2 months’ imprisonment following activation of the suspended sentence is allowed and the activation order is set aside.  The appellant is therefore sentenced to 22 months’ imprisonment.