HKSAR v. YU WANG TIM

CACC 191/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 191 OF 2002

(ON APPEAL FROM DCCC 839 of 1993)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. On the afternoon of 12 June 1993, the applicant was seen by police officers in Ki Lung Street, Shamshuipo, Kowloon and he was searched. The officers found on him a plastic bag with 42 plastic packets of a mixture containing salts of esters of morphine with a narcotic content of 8.64 grammes. Under caution, the applicant said that the drugs were for his own consumption.

2. He was then taken to his residence nearby and there the police found more drugs in plastic bags, as well as a blender. Again he said that the drugs were for his consumption. The narcotic content of these drugs was 10.01 grammes.

3. These discoveries formed the basis of two charges against this applicant in the District Court, each for trafficking in the heroin found on 12 June: the first charge for the amount found on the applicant in the street, 8.64 grammes; the second, for the amount in his flat, 10.01 grammes.

4. He appeared before Deputy Judge A Yuen on 12 April 2002, and pleaded guilty. What the judge did was to take a starting point of five years' imprisonment for each offence, and then reduced each by one-third to reflect the plea of guilty to a term of three years and four months. But the judge then ordered that "20 months on the second charge will run concurrently to the sentence of first charge making a total of five years". This was a rather odd way saying that he ordered one year and four months on the second charge to run consecutively.

5. Mr Surman, for the applicant, has argued, first, that the starting point for the first offence was too high, given a starting point adopted on the second charge of a slightly greater quantity; but we do not, with respect, agree with this argument. The fact is that the starting point for the amount of drugs reflected by the first charge was within the accepted tariff range.

6. He further argues that it was wrong to order any part of the sentence to run consecutively, since the charges arose out of one set of circumstances. The answer to that is that it is the totality of the drugs which must be met with a punishment appropriate to that totality and if, faced with two charges properly brought, it is correct to order partially consecutive sentences to reflect the correct total quantity of drugs, then that is what must be done. There is no illogicality or injustice in that approach.

7. We have, however, trouble with another, more general, aspect of the judge's approach. If the judge considered that the pleas of guilty merited a one-third discount for each offence, then it must follow that a one-third discount was warranted from an overall starting point for the two. That would, on the basis of the resulting five-year sentence, mean that the overall starting point adopted by the judge, assuming he approached the matter in this way, was seven years and six months, which in our judgment would be manifestly excessive for a total narcotic content of 18 grammes. Alternatively, the judge has not given a one-third reduction for the plea when considering totality, but he has not said why. In the further alternative, the judge has simply not addressed the appropriate sentence for the total quantity of the drugs.

8. The individual starting points for each offence were correct, but what the judge should have done when looking at totality was to look at the total quantity of the drugs. That would have provided him with an overall starting point of six years' imprisonment for a total quantity of 18.65 grammes. If a one-third discount were appropriate, and that is a matter to which we shall shortly turn, that would then have resulted in a sentence, overall, of four years' imprisonment.

9. There are two further specific matters to which the judge did not refer. The first is that the applicant was sentenced some nine years after the offence, and that was because he had absconded whilst on bail. He did not surrender himself but was subsequently arrested. That is a matter which "will normally have a bearing on the discount given to a defendant who pleads guilty, as it is plain he has not pleaded guilty at the earliest opportunity." (HKSAR v Yip Kenny CACC 324 of 2000, 21 November 2000, unreported.)

10. Secondly, the judge made no reference to the fact that the applicant has a record of similar previous convictions. He is now aged 53 years, although only 44 years or so at the date of these offences. He has previous convictions for trafficking although those go back some time, as well as for possession of drugs. The judge might in the circumstances have been justified had he taken a slightly higher starting point for the individual offence.

11. It will be seen that the whole approach adopted by the judge is one which has erred in principle, so that we are required to start again, as it were. In the event, we are of the view that the starting points taken for the individual offences were correct, but that the one-third discount given was too generous. We will set aside the sentences on Charges 1 and 2 and adopt the same starting point but, under section 83I of the Criminal Procedure Ordinance, Cap 221, impose, in respect of each of those offences, a sentence of four years' imprisonment. The overall result should reflect an overall starting point of six years' imprisonment, and an appropriate reduction from that; but not a full one-third reduction, given the circumstances of the applicant's absconding and his consequential late plea to which we have referred. We think that the appropriate overall result should have been a sentence of four years and nine months' imprisonment.

12. Accordingly, we shall give the applicant leave to appeal against sentence and, treating the hearing as the appeal, we set aside the individual sentences, impose four years' imprisonment on each; we further set aside the terms of the judge's order as to the consecutive or concurrent sentence and order, instead, that nine months in respect of the sentence on the second charge shall run consecutively to the sentence imposed on Charge 1, the remainder to run concurrently: a total sentence of four years and nine months' imprisonment.