HKSAR v. LEE YIN KEE

CACC 435/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 435 OF 1999

(ON APPEAL FROM HCCC NO. 38 OF 1999)

_______________________

J U D G M E N T

_______________________

Wong, J.A. (giving the judgment of the Court) :

1. On 6 August 1999, the Applicant pleaded guilty before Deputy Judge Wesley Wong in the Court of First Instance to one count of trafficking in 23.71 grammes of what is commonly known as "Ice" and one count of possession of 4.23 grammes of the same substance. He was sentenced to 5 1/2 years imprisonment on the first count and one year imprisonment on the second count to run concurrently but his sentence of 5 1/2 years was to run consecutively to a sentence of 7 1/2 years that the Applicant was then serving in respect of an identical offence involving the trafficking in 19.45 grammes of "Ice". That sentence was imposed in respect of an offence that was committed exactly a year before the present offences, on 26 September 1997. The more recent offences, committed on 26 September 1998, were whilst the Applicant was on bail. The Applicant seeks leave to appeal against the sentence in respect of the latter offences.

2. The facts are very simple. Police officers from the District Special Drug Squad of Yaumatei laid an ambush on the staircase near the Front Portion, 2nd Floor, Jordan Mansion in Jordon Road, Kowloon and, upon the Applicant returning but prior to his entry into the premises, the officers observed the Applicant picking up 2 plastic bags from a flower pot placed outside the premises. When the officers rushed out from the staircase, the Applicant dropped the 2 plastic bags on the ground which were picked up by the officers. The Applicant was arrested. The 2 plastic bags were examined by the Government Chemist later and found to contain a total of 25.11 grammes of a crystalline solid containing 23.71 grammes of "Ice". A search inside the premises resulted in the discovery and seizure of 5 packets of "Ice" which are the subject matter of the second count and which the Applicant told the officers was for his own consumption.

3. This appeal raises two issues. First, the question of totality. Second, the question of discount. In sentencing the Applicant, the judge said :

I diagree with your counsel that I should take into consideration your previous sentence and order sentence to be served partly concurrent and partly consecutive with the previous offence, because you have committed the present offence which is similar to the previous one while you were on bail, and because of this I cannot give you a discount."

4. We have considered the submissions advanced before us by Mr Wilson Chan for the Applicant and Ms Ho for the Respondent. The Applicant pleaded guilty at the outset of the trial and should have been given a full discount of one third according to the normal practice. He was not given the full discount and the reason given by the Judge was that he had committed the offence whilst on bail. Mr Chan for the Applicant readily conceded that the commission of the offence whilst on bail was an aggravating feature which the judge was entitled to take into account. But he complained that the judge could not take that into account for 2 completely different purposes. That is for reducing the discount as well as for making the sentence consecutive to the previous sentence. We agree. The judge could not do both.

5. This leaves the issue of totality. It does appear to us from the passage we have already read that the judge did consider totality although he did not specifically and expressly say so. Where offences were committed while the offenders were on bail, it would be proper, in appropriate cases, to make sentences imposed wholly consecutive to sentences for previous offences as the judge did here (See R v Wong Sau Ming [1989] 2 HKLR 406) provided totality is kept in mind.

6. We have given anxious consideration to totality in the present case bearing in mind the guidelines in AG v Ching Kwok Hung (1991) 2 HKLR 125. Bearing in mind the total amount of "Ice" which the Applicant trafficked on the two occasions which had been brought before the Court was less than 50 grammes but because of the aggravating feature that the present offences were committed whilst the Applicant was on bail, we think that the overall sentence should have been 10 1/2 years.

7. In the result, we grant leave and treat the application for leave as the hearing of the appeal, we allow the appeal and reduce the sentence imposed in Count 1 to 5 years to give proper effect to the discount for plea. The sentence on Count 2 remains the same, to be served concurrently. We further order that 3 years of the sentence will be served consecutively to the sentence of 7 1/2 years he is currently serving, making a total sentence of 10 1/2 years. In effect, the overall sentence of 13 years is reduced by 2 1/2 years.