HKSAR v. CHEUNG MAN WO ANDY

CACC 303/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 303 OF 2000

(ON APPEAL FROM DCCC 418/2000)

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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. The applicant pleaded guilty in the District Court to five charges as follows: a charge of trafficking in a mixture containing 0.11 grammes of heroin at Southorn Playground on 8 February 2000; in the same quantity and at the same place on 11 February; in 0.08 grammes at the same place on 18 February; and at the same place with a quantity of 0.04 grammes of heroin on 21 February. These four charges resulted from controlled purchases by an undercover agent. On each occasion the applicant sold one straw packet of heroin for $120. A search warrant was executed at his place of residence on 24 February, and there was found there, in 17 plastic straws, a mixture containing 2.06 grammes of heroin as well as injecting equipment. The applicant said that the quantity found at his flat was for his own consumption. The fifth charge was of trafficking in this quantity found at his flat.

2. At trial, the applicant pleaded guilty to the first four trafficking charges and his plea of guilty to simple possession in relation to the fifth charge was accepted.

3. The applicant is aged 35 years and has a long history of previous convictions for drug offences, including convictions in 1996 for trafficking in dangerous drugs in respect of which he received sentences totalling four years' imprisonment.

4. In respect of the current offences, the judge sentenced him as follows. He took for the trafficking offences, namely, charges 1-4, a starting point of three years' imprisonment for each. He said that he noted that the Southorn Playground was an active area for street level trafficking, and it was necessary, he said, for sentences in respect of that location to contain an element of deterrence. We think that the judge was entitled to take into account the location of these offences; it is a trafficker's market place out in the open in the very midst of an urban area. The judge did not suggest, as indeed he might have, that the applicant's record was also an aggravating feature. Given the location, and given his record, we do not think that a starting point of three years was one which was, in fact, a wrong starting point to take. The judge then reduced the sentence for each trafficking offence to one of two years' imprisonment; and he ordered that nine months of each of the sentences passed in respect of the second, third and fourth charges was to run consecutively to the sentence passed on the preceding charges, the remainder to run concurrently, making a total of four years and three months all told for those charges. For the possession offence, that is, charge 5, he took a starting point of 18 months' imprisonment, reduced that to a sentence of 12 months because of the plea, and ordered three months of that to run consecutively to the sentences passed for the other offences, making a total of four years and six months.

5. This is the applicant's application for leave to appeal against those sentences.

6. He complains that he might have been arrested before he was and thereby faced fewer charges; but we think that it was wholly acceptable for the police to see whether he was a regular trafficker, which indeed proved to be the case, and to complete the operation. He thinks that he has been sentenced for past offences. The judge did not in fact aggravate the sentences by reason of his record, though as we say, such a record is indeed an aggravating feature.

7. Finally, the applicant says that the sentence overall was too high.

8. We note that the case falls almost exactly on all fours with that of HKSAR v. LAI YAU-FAT, CACC 278/2000, which came before this court on 6 December 2000. The sentencing judge was the same sentencing judge in the present case. Indeed Lai pleaded guilty on the same day before the same judge as did this applicant. No doubt it was all part of the same police operation. How these cases came before the Court of Appeal on separate days we do not know. It is an entirely unsatisfactory situation which needs to be addressed. Ms Sin, to whom no blame whatsoever attaches for that state of affairs, has kindly undertaken to secure the production of a report for the benefit of this court to show how this has come to pass, and to show what system exists within the Department of Justice to safeguard against such an occurrence.

9. But to return to the present case and to Lai Yau Fat, in Lai Yau Fat there were also four charges. They involved a combined weight of narcotic content of 0.31 grammes of heroin. In the present case the combined weight on the first four charges was 0.34 grammes. In Lai Yau Fat the applicant had many previous drug related charges, as does the applicant in this case. In Lai Yau Fat the trial judge, as in the present case, considered that for each and every trafficking offence subsequent to the first of the four there should be a consecutive sentence of nine months. In the result, the judge in Lai Yau Fat imposed a total sentence of four years and three months' imprisonment for the four offences, as he did in the present case for the first four charges. The Court of Appeal in Lai Yau Fat took the view that that was a totality which in all the circumstances was too high and said:

"We consider that, whilst consecutive sentences at least in part were fully justified to reflect the further offences, justice could have been done in this case by imposing an overall sentence, bearing in mind the pleas of guilty and totality, of three and half years' imprisonment."

10. There is, as we have demonstrated, nothing to distinguish that case from the first four charges in this case. There is a distinction, however, in that in this case there is a fifth charge, namely, the possession charge, a separate offence which fact ought to be reflected in sentence. In this case we think that a total of three years and nine months is appropriate as a totality.

11. Accordingly, we give leave to appeal against sentence and treat this as the hearing of that appeal. We will not interfere with the sentences of two years imposed on each of the charges 1-4. We shall, however, order that the sentences on charges 2, 3 and 4 will run consecutively to that imposed on charge 1 and to each other to the extent of six months only in each case, the balance to run concurrently, which produces a total of three years and six months for those four charges; and we order that for the possession offence three months of the twelve months imposed should run consecutively to the sentences passed on the first four charges, the balance to run concurrently; a total, in other words, of three years and nine months' imprisonment. To that extent, this appeal succeeds.