HKSAR v. HO FOOK SHING

CACC 564 /1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 564 OF 1999

(ON APPEAL FROM HCCC NO. 442 OF 1999)

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J U D G M E N T

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Wong JA:

1. On 6 May 1998, the applicant pleaded guilty before Pang J in the Court of First Instance to a charge that

"On the 2nd day of September 1997 at No. 56, Ma Tau Chung Road, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 691.06 grammes of mixture containing 486.11 grammes of heroin hydrochloride."

He was sentenced to imprisonment for 10 years. He lodged a notice on 9 November 1999 for leave to appeal against sentence out of time. He is out of time, for nearly 11/2 years.

2. The applicant was intercepted by police officers in a staircase in Ma Tau Chung Road and found to be in possession on his person of the large quantity of narcotics.

3. He gave his reasons as why he was late in filing his notice of appeal in a written statement to this Court dated 22 October 1999 in which he said :

"1. I intend to hire a private lawyer so I apply for an appeal out of time.

2. It was after thorough consideration that I finally decided to apply for an appeal against sentence.

3. I have found a precedent case to support my application for appeal against sentence.

4. The sentence is too heavy."

4. He elaborated this statement in another written statement which he placed before us this morning. We have very carefully considered both statements and we are satisfied that no good and sufficient reasons have been shown for the delay. Further we have also considered the merit of the application and come to the conclusion there is a total lack of it. The judge, in our view, was already very generous in adopting a starting point of 15 years. With a quantity of just 12 grammes short of 500 grammes of narcotics, a starting point of 17 years would be warranted. The judge also allowed the applicant a discount of one third for his plea of guilty despite the fact that the present offence was committed whilst he was on bail pending trial for another offence involving dangerous drug. If the judge had adopted a starting point of 17 years which he could have done, the applicant would receive a sentence of 11 years and 3 months after the discount.

5. Before us, the applicant complained and that, in fact, was his main complaint that the judge was wrong to order the sentence of the present offence to run wholly consecutively with the sentence imposed on him in the District Court in connection with the other dangerous drug offence.

6. Mr Cheung for the Secretary for Justice has been very helpful to provide us with a chronology of events leading up to the plea and sentence before Pang J on 6 May 1998. The applicant committed the District Court offence in September 1996. He was granted bail on 10 January 1997 by a judge in the District Court. He was told to appear on 16 May 1997 but he failed to answer his bail. He had been at large until September 1997 when he was arrested in the staircase with the quantity of the dangerous drug that formed the subject matter of the charge against him in the Court of First Instance. On 4 December 1997, he was dealt with in the District Court for the early offence. He appeared in the Court of First Instance on 6 May 1998 and was sentenced to 10 years' imprisonment for the present offence.

7. It is a well-established principle of sentencing practice, where two or more offences, albeit similar offences, were committed at different times and places, the sentences imposed on the offences should be ordered to run consecutively, although there may be cases where the totality of sentence is too high and the sentences for the offences may be ordered to run concurrently or partly consecutively. In our view, in this case, even taking totality into account, the sentence of 121/2 years for the two offences is in no way excessive, let alone manifestly excessive. It was entirely proper for the judge in the circumstances of this case to order the sentence for the latter offence to be served wholly consecutively with the sentence of the early offence.

8. The applicant also made reference to some cases decided in the Court of First Instance and the District Court which, in our view, are not relevant to the present situation and of no assistance to the applicant. The sentence imposed by the judge on the applicant was in no way excessive.

9. Accordingly, we refuse to grant leave to appeal out of time.

10. As the application is completely devoid of any merit, we order a period of 3 months that the applicant has spent in custody will not be counted towards his sentence.