HKSAR v. WONG WAN

CACC 384/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 384 OF 2000

(ON APPEAL FROM DCCC 159 OF 2000)

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J U D G M E N T

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Hon Stuart-Moore V-P (giving the judgment of the Court):

1. On 4 September 2000, the Appellant pleaded guilty in the District Court before Judge Toh to two charges of trafficking in heroin hydrochloride. The charges related to mixtures containing a narcotic content of 5.11 grammes and 10.86 grammes respectively. The judge imposed sentences of 20 months on the first charge and 40 months on the second, of which 30 months was ordered to run consecutively, making a total sentence of 50 months' imprisonment. The matter now comes before us as an appeal against sentence, leave having been granted by Mayo V-P on 16 January 2001.

2. In brief, the Appellant, aged 78, was stopped in the street on 21 September 1999 when he was found to be in possession of the smaller quantity of heroin in charge 1. Later, when his home address was searched, police discovered the larger quantity of heroin. The packing materials at his home made it abundantly obvious that he was a trafficker. This fact has at no stage been denied by the Appellant although a glance at his criminal record, which shows that he has been before the courts on 42 prior occasions, reveals that most of his previous convictions have been for possessing dangerous drugs.

3. In passing sentence, the judge rightly remarked that the Appellant's age was not a mitigating factor of any weight. She then took a starting point in respect of each count based upon the guidelines in R v Lau Tak-ming & Ors [1990] 2 HKCLR 370. Unfortunately, whilst it is right to say that she considered totality, at no stage did the judge look at the total quantity of heroin involved in these two closely linked offences in order to consider what the overall sentence should have been under the guidelines. This could only be determined by adding the two amounts of heroin together. [See: HKSAR v Chow Yu-chi, CACC 359/2000 (unreported)]. The Appellant had admitted to trafficking on the same day in almost 16 grammes of heroin hydrochloride. This amount, under the guidelines, would have merited a sentence of about five and a half years' imprisonment. Giving the one third discount for his pleas of guilty, the Appellant would then have been sentenced to a term in total of three years eight months' imprisonment. As it is, he is serving a sentence of four years and two months. Accordingly, his appeal must succeed.

4. On charge 1, we shall not interfere with the sentence. However, on the second charge, while the sentence of 40 months will remain, we shall order that only 24 months of this sentence should run consecutively to the sentence on the first charge. This has the effect that the Appellant will now serve a sentence of three years eight months, a reduction of six months on his original sentence. To this extent, the appeal succeeds.