HKSAR v. LAU PING HIM

CACC 46/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 46 OF 2001

(ON APPEAL FROM HCCC 138 OF 2000)

______________

______________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. On 4 January 2001, the Applicant, aged 37, pleaded guilty before Deputy Judge Toh in the Court of First Instance to a charge of trafficking in a mixture containing almost exactly 236 grammes of methamphetamine hydrochloride (ice). He was sentenced on 17 January 2001 to eight and a half years' imprisonment, of which two years were ordered to run concurrently with the sentence of seven years and nine months the Applicant was already serving. The latter offence was in respect of a similar trafficking charge for which he was on bail at the time he committed the present offence. The Applicant, by his conviction arising from this earlier offence, was also in breach of a suspended sentence for drugs offences.

2. The Applicant now seeks leave, in the matter presently before us, to appeal against his sentence on the grounds that the thirteen-year starting point adopted by the judge was one year too high, and that a larger proportion of his current sentence should have been ordered to run concurrently with the sentence he was already serving.

3. The facts were straightforward. During the evening of 11 February 2000, the Applicant was observed to be acting in a suspicious manner. The police kept an eye on what he was doing. When the Applicant was seen in Humphreys Avenue, close to Nathan Road, he walked into the roadway between two vehicles. At that time, a car briefly pulled up alongside him. The car then sped away and the Applicant was next noticed to be holding a bag in his hand. He was arrested and remained silent. However, when the police saw what was inside the bag the Applicant had been holding, he replied that the "stuff" was not his. Later he refused to say anything at all to the police.

4. The value of the ice in this case is in the region of $129,000. It is apparent that whatever the Applicant's role may have been, he was a trusted member of some syndicate engaged in drug trafficking.

5. The Applicant's earlier conviction was in respect of HCCC 88/2000 recorded on 24 October 2000. The Applicant was convicted after trial, again before Deputy Judge Toh, of trafficking in a mixture containing 12.59 grammes of ice. The Applicant was sentenced to seven and a half years' imprisonment in respect of the trafficking offence and a previously suspended sentence of three months for other drug-related offences was activated consecutively, making seven years and nine months in all. On 19 April 2001, this court heard and dismissed an application for leave to appeal against sentence in that matter. In a sense it is unfortunate that these two applications could not have been heard together and we would perhaps invite counsel for the Respondent to make a note of what we have said in the event that there are other cases in the pipeline where this kind of situation is likely to arise.

6. In passing sentence in the matter before us, the judge referred to the guideline band of ten to fourteen years in R v Ching Kwok-hung [1991] 2 HKLR 125 for 70 to 300 grammes of ice. As the charge concerned 236 grammes, and was aggravated by having been committed on bail for another similar offence, she adopted the starting point of thirteen years' imprisonment which, in any event, was well within the recommended guidelines. We cannot agree with the Applicant that the judge's starting point was too high. This ground of appeal fails.

7. The judge discounted the starting point by a third. She then further rounded down the sentence by two months, to make a sentence of eight and a half years, before considering totality. Ultimately, as we have said, the Applicant's sentence was made to run consecutively to the extent of six and a half years only, leaving the Applicant to serve fourteen years' imprisonment for the two trafficking offences.

8. We perhaps only need to say in respect of the Applicant's second ground of appeal that for someone with his lengthy record, he should have been well aware that totality does not always have much of a part to play in rounding sentences down where offences are committed on bail. By way of example, in HKSAR v Hoang Thi Thu Huyen, CACC 195/2000 (unreported), a judge rounded down a sentence for trafficking in heroin to take into account the principle of totality where the applicant had just commenced a sentence for theft. The trafficking offence was committed whilst the applicant was on bail for the theft. We observed:

"We find it very difficult to see why totality played any part at all in the sentencing exercise undertaken by the judge. The present offence was entirely separate to the other matter and was, in any event, committed while the Applicant was on bail. In such circumstances, almost inevitably the sentence for this offence should have been ordered to run consecutively. If the overall effect produced a sentence which was considered to be too long then a part of the sentence could have been ordered to run concurrently. The Applicant is remarkably fortunate to have had the benefit of a somewhat unusual approach taken by the judge."

9. The judge, in the case before us today, did consider how to approach the total sentences in the two separate cases and gave the Applicant a partially concurrent sentence, having regard to the overall term involved. Her approach was entirely correct, and the proper sentence for this offence was not compromised (as in the case cited earlier) by being rounded down. Instead, a partially concurrent sentence was made.

10. We can find no merit in this application and it is dismissed.