HKSAR v. LAU KIN CHUNG

CACC79/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 79 OF 2003

(ON APPEAL FROM HCCC 432 of 2002)

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1. The applicant was, on 21 February 2003, convicted on his own plea of one count of trafficking in a dangerous drug contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He now appeals that sentence.

2. The facts agreed were that on 17 August 2002, the applicant was stopped when entering Hong Kong at the Lo Wu Border control point. He was searched and a block of dangerous drugs was found concealed in his underwear. Having been arrested and cautioned, the accused said that he was carrying the drugs into Hong Kong for another person and wished to obtain money to pay for his grandmother's funeral when she passed away. He was to be paid $15,000 for acting as a courier.

3. The drugs upon analysis were found to be a mixture of 211.61 grams containing 48.01 grams of heroin hydrochloride.

4. The applicant admitted to five previous convictions, three for possession of a dangerous drug and two for trafficking in a dangerous drug. He was released from prison in 2001, having served a sentence of ten and a half years for two counts of trafficking in dangerous drugs imposed in 1995.

5. Deputy Judge Line in determining the starting point to be adopted for the sentence referred to the guidelines for sentence for the offence of Trafficking in a Dangerous Drug set out in R. v. Lau Tak Ming [1990] 2 HKLR 370. He noted that the quantity of drug 48.01 grams fell at the top of the five to eight-year bracket of sentence. However to reflect the seriousness of the offence being one of importation and to reflect the persistence with which the applicant had offended in relation to drugs particularly trafficking in a dangerous drug, the Deputy Judge took as a starting point nine years' imprisonment. From that period he deducted three years for the plea, arriving at a sentence of six years' imprisonment.

6. The perfected grounds of appeal are that the learned Judge erred in law in adopting a starting point of nine years which extended the sentencing guidelines laid down in Lau Tak Ming to another band for a larger quantity of drugs.

7. This court has dealt with the question of persistent offenders and those with histories of previous offences in narcotics cases. In HKSAR v. Chan Pui Chi, Stuart-Moore JA said :

"Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this Applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none. If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.

In R v Billam, (1982) Cr App R 347, the English Court of Appeal set out (at page 350) eight factors which aggravate, for the purposes of sentence, the crime of rape. The fifth of these is:

'the defendant has previous convictions for rape or other serious offences of a violent or sexual kind.' (Emphasis supplied.)

The court went on to say that:

'Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.'

Extending this principle to another more common example, in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for repetition.

There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.

In drug trafficking cases, this was clearly recognised in Lau Tak-ming at page 386F where the Court said:

'Within the suggested bands, factors which the sentencing judge may properly take into account are: ..... his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf .....' (Emphasis supplied.)

8. Mr Ma for the applicant argues before us today that the words "within the suggested bands" form a prohibition precluding the sentencing judge from departing from the bands set out in Lau Tak Ming, even where it would otherwise be appropriate.

9. Clearly the words "within the suggested bands" do not preclude the sentencer from adopting a starting point in the next band up when the quantity of drug falls at the very top of a band. If that were to be so, the guidelines set down in Lau Tak Ming would be a straight-jacket imposing upon the sentencer a limit which would preclude him properly dealing with those offenders of differing characters, differing criminal histories who trafficked in a quantity of drug falling either at the very top or the very bottom of a band of sentence.

10. In reflecting the criminal background of the applicant by increasing the starting point by one year the Deputy Judge was not wrong in principle nor was the starting point manifestly excessive.

11. The application for leave to appeal is refused.