WONG CHAK HUNG v. R.

IN THE COURT OF APPEAL

1993, No. 598
(Criminal)

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J U D G M E N T

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Headnote: Sentence: Serving imprisonment at time of conviction for

subsequent offence: totality to be considered

Silke, V.-P.:

1. This is the judgment of the court.

2. Wong Chak Hung appeared for trial before His Honour Judge Wesley Wong, sitting as a Deputy Judge of the High Court, on an indictment containing a single count of trafficking in a dangerous drug. This related to 271.93 grammes of a mixture containing 138.10 grammes of salts of esters of morphine. The offence was committed on 10th October 1992 and a sentence of 6 years' imprisonment was imposed on 4th October 1993. No quarrel was taken with the individual sentence.

3. The applicant had been found carrying a brown paper bag in which there were two other bags - a pink plastic bag and a clear plastic bag. In the pink bag were 10 smaller plastic bags each containing heroin. In the clear plastic bag were 40 straws each containing heroin.

4. Subsequent to his arrest, his flat in Kam Kong Road, Tokwawan was searched. On a table in that flat were found 118.08 grammes of caffeine; a blender which contained traces of heroin; a hammer, a scale, 116 plastic drinking straws; cardboard box with 106 straws; tweezers, scissors and other items clearly relevant to the packaging of dangerous drugs. The total weight of the narcotic that was found was, as we have indicated, 138.10 grammes of salts of esters of morphine.

5. The applicant pleaded guilty.

6. In passing sentence, the trial judge said there was little that could be said on his behalf except for his plea of guilty.

"In view of the amount of salts of esters of morphine involved, I take a starting point of eight years and give you a discount and sentence you to six years. And these six years will run consecutive to the present sentence you are now serving."

That last statement was a reference to a robbery conviction, the offence having taken place on 11th December 1991. A sentence of 5 years' imprisonment was imposed on 31st December 1992.

7. The sole point in this appeal is the matter of the totality of sentence, 11 years in all. The trial judge does not appear to have considered totality. He makes no mention of it.

8. Where there is a previous conviction and a man is serving a sentence of imprisonment and he then falls to be sentenced for a subsequent offence, the trial judge should be provided with some information as to the nature of the previous conviction. This was not done here. It was therefore necessary for us today to adjourn for a period because that information was also not available at the commencement of the appeal - which, with respect to counsel, it should have been - to obtain the lower court record so that we were apprised of at least some of the circumstances of the robbery conviction.

9. In respect of this instant sentence of 6 years' imprisonment, Mr. Schapel is quite right to draw our attention to the fact that the quantity here falls within the 50 to 200 grammes level of Lau Tak Ming [1990] 2 HKLR 370 and this attracts a sentence of 8 to 12 years imprisonment. The quantity here is well above the lower end of that scale. The trial judge took as a starting point 8 years, which is the lowest end of the scale, and discounted it to six for the plea of guilty. The starting point could be well considered over generous to the applicant.

10. But that having been said, we must, which, with regret, the judge did not, consider what is the overall totality of the term the applicant will serve. We posed to ourselves the question: What, if both offences were being dealt with at the same time, would a sentencing judge have done? It is our view that he would have come to a sentence of somewhere between 9 and 10 years. We consider the totality of 11 years is too high. We think 9 years totality to be the appropriate sentence.

11. We would therefore give leave, treat the hearing of the application as the hearing of the appeal and allow the appeal. We order that 2 years of the 6-years sentence passed in this case run concurrently with the sentence of 5 years' imprisonment which was then being served. If our mathematics are correct that results in a total sentence is 9 years' imprisonment and the appeal is allowed to that extent.