HKSAR v. ERIKSSON RICKARD WILHELM

CACC 454/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 454. OF 2002

(ON APPEAL FROM DCCC NO. 375 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant, Eriksson Rickard Wilhelm appeared before Judge Poon in the District Court on an indictment consisting of the 1st charge of trafficking in a dangerous drug, the 2nd charge of possession of dangerous drugs and the 3rd charge of possession of apparatus fit and intended for inhaling a dangerous drug.

2. The applicant pleaded guilty to all three charges and was sentenced to the respective terms of 3 years, 2 months and 8 months to run concurrently. The applicant now seeks leave to appeal against these sentences.

The Facts

3. The facts as admitted by the applicant are simple. On 8 February 2002, police offices broke into premises at Room 401, Ivy House in Wyndham Street. There were two rooms inside and the applicant was in one of them.

4. The applicant threw a metal box from the window of the room. The metal box contained 4 plastic bags with a total of 8.11 grammes of a crystalline solid containing 7.97 grammes of 'ice' (the subject matter of the 1st charge).

5. The small quantity of cannabis resin and traces of cocaine (the subject matter of the 2nd charge) as well as the apparatus (the subject matter of the 3rd charge) were found inside the applicant's room. The applicant admitted that the dangerous drugs and the apparatus belonged to him and he also admitted to have trafficked in a dangerous drug.

The Judge's Approach

6. The judge adopted the respective starting points of 4 1/2 years, 3 months and 12 months for the 1st, 2nd and 3rd charges and reduced them by one-third on account of the guilty plea.

7. The judge took the view that on totality principle, an overall starting point should be 5 years. With the one-third discount for the guilty plea, the total sentence was reduced to 40 months. The judge allowed a further discount of 4 months for the assistance that the applicant gave to the police and the ICAC. The Judge then imposed the sentence as she did, namely concurrent terms of 3 years, 2 months and 8 months.

8. Apparently the applicant had assisted the police and the ICAC by informing on drug traffickers. According to Mr. Madigan, counsel for the respondent, the assistance given by the applicant was considerable. He gave information to the police that led to the arrest of 9 individuals in 4 different cases. Of the 9 arrested persons, 7 were convicted of various charges and 2 were acquitted. The assistance to the ICAC resulted in the arrest of 3 persons who were arraigned with conspiracy to traffic in dangerous drugs and perjury. One of them was convicted.

Grounds of Appeal

9. Mr. Surman, on behalf of the applicant complains that the starting points for the 2nd and 3rd charges are too high. He agrees with the starting point of 4 1/2 years for the 1st charge but suggests that sentences on the 2nd and 3rd charges should be concurrent sentences. Adopting the approach of the judge, with the one-third and then the 4 months reduction, the total sentence should be 32 months' imprisonment. Mr. Surman also suggests that the 4 months reduction for the assistance to the police and the ICAC is inadequate.

10. Having adopted a starting point of 4 1/2 years for the 1st charge and then increased it to 5 years on totality principle, the judge in effect had ordered the sentences on the 2nd and 3rd charges to be partially consecutive.

11. Mr. Madigan, for the respondent fairly concedes that the sentences on the 2nd and 3rd charges should be concurrent sentences and the reduction of 4 months is not commensurate with the assistance rendered by the applicant to the police and the ICAC.

12. We agree that the very small amount of cannabis and cocaine traces possessed by the applicant barely affects the gravity of the case when this is set against the far larger quantity involved in the trafficking charge. (see HKSAR v Wong Kam-wo [2001] 2 HKC 647

13. In HKSAR v Lee Yuen-ping, Maggie CACC 242 of 2000 (unreported), a case on sentence for possession of apparatus and for trafficking dangerous drugs, we made the following comment:

"The sentence of six months' imprisonment on the second charge is in itself not objectionable, save that the judge ought, we believe, to have ordered it to run concurrently to the sentence on the first charge".

14. The assistance given by the applicant to the police and the ICAC is considerable as pointed out by Mr. Madigan. In a case where an accused pleads guilty and provides information to the authority leading to the arrest of criminals and if the accused also gives evidence against such criminals, a discount of up 50% is justified.

15. In HKSAR v Ng Shek-yu CACC 178 of 2000 (unreported), the Court of Appeal confirmed a 40% to 45% discount in sentence for an accused who is not a supergrass and had provided assistance to the authorities without giving evidence against other offenders. The discount can be adjusted upward if the accused suffers any serious hardship by reason of the assistance to the authorities.

16. There is no suggestion that the applicant and/or his family members had suffered or would suffer and serious hardship because of the information he provided to the police and the ICAC. In the circumstances, we are persuaded that the applicant should be given about 45% discount for his guilty pleas and the considerable assistance that he had given to the relevant authorities.

17. Not that it is of any significance, but the sentence of 8 months on the 3rd charge is also excessive. A more appropriate sentence should be 6 months.

Conclusion

18. To give effect to our decision, we make the following orders:

(1) The application for leave to appeal is allowed and the application is treated as the appeal proper. The appeal is allowed and the sentences on the 1st and 3rd charge are reduced respectively to concurrent terms of 30 months and 6 months also to run concurrently with the 2 months on the 2nd charge.

(2) The total sentence is reduced from 3 years to 30 months imprisonment.