ATTORNEY GENERAL v. TO KA YIN

IN THE COURT OF APPEAL

Application for Review
1996, No.3

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter originally faced 11 charges of trafficking, he pleaded guilty to six of those before Judge Surman in the District Court and was sentenced to eight months concurrent on each charge. The other five charges were not proceeded with. The Attorney General now seeks to have this court review the sentences that were imposed on the ground that they were manifestly inadequate.

2. On each occasion the applicant had sold drugs to undercover police officers who were posing as addicts. The trial judge was troubled by several matters. First he was concerned that the respondent was the victim of entrapment. He said:

"I was also concerned that 'the purchasers' of the drugs from the Defendant were police officers: allegedly 11 separate purchases on 11 separate occasions spanning a 14 day period. I asked the Prosecution to give me an explanation about why this Defendant was not arrested long before the 11th offence. I was eventually advised that the Agents Provocateurs continued because it was part of a large scale operation. I still found it unsatisfactory that this Defendant was not arrested earlier."

3. We find ourselves unable to agree with these observations. The police officers were in no sense agents provocateurs. They initially dealt with the respondent and then continued to deal with him because they were part of a large scale police anti-drug operation. In no way did they incite him to commit these offences. This consideration, although, it seems to have weighed with the judge, was not one of any real weight in the respondent's favour.

4. The judge was also troubled by the overall amount of drugs involved - 3.06 grammes of a mixture and 0.37 grammes of narcotic content. He seems to have considered that, because of the overall quantity, this prosecution should properly have been brought in the magistrate's court. Again we cannot agree. This matter involved six separate trafficking charges and was rightly brought in the District Court.

5. The trial judge when sentencing took into account the age of the respondent and was right to do so. We have, however, considerable difficulty with the final passage in his reasons when he said:

"I considered that a short term of imprisonment was the appropriate option. The scale in Lau Tak Ming starts at 2 years (up to 10 grammes of narcotic) after trial. However, taking into account all the matters I have mentioned - and in particular the very low total narcotic content for the 6 charges involved, I decided that the sentence should start at 12 months for each charge but be reduced to 8 months for the pleas of guilty." (Emphasis supplied.)

6. We ask ourselves did the trial judge in some way misapprehend the guidelines in Lau Tak-ming or was he satisfied that the tariff, because of the circumstances, and, in particular, the low narcotic content, should not apply. Lau Tak-ming clearly states that where trafficking is involved the starting point is two years. Whichever it may have been, whether the judge misapprehended the guidelines or thought that they had no application, we are satisfied that his conclusion was plainly wrong. The starting point for each offence should have been two years. Adjustment would then have to be made in accordance with the totality principle.

7. We are satisfied that the Attorney's application must succeed and, being as lenient as can be in the circumstances, that an overall sentence of three years would have been appropriate and that this could properly be reduced because of plea to two years. We are mindful, however, of the Attorney General v. Wong Kwok-wai [1991] 2 H.K.L.R. 384 where the court, dealing with an application for review, said:

"Having stated that discount would normally not be given, however a discount might be given where the respondent was very close to the end of the sentence or where the sentence imposed upon review was greatly in excess of the original sentence."

The sentence of two years is greatly in excess of the original sentence and we therefore consider it proper to give a further discount reducing it to one of 18 months.

8. The application of the Attorney General is allowed and the sentence is varied to one of 18 months on each charge to be served concurrently.