HKSAR v. LAI MEI FUNG

CACC 614/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 614 OF 1999

(ON APPEAL FROM DCCC 750 OF 1999)

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J U D G M E N T

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

1. On 4 November 1999, the applicant pleaded guilty in the District Court before Judge Sweeney to two charges of possessing heroin hydrochloride. On 18 November 1999, the applicant, following a report from the Drug Addiction Treatment Centre, was sentenced to consecutive terms of two years' imprisonment on these charges. She now seeks leave to appeal against sentence.

2. In his Reasons for Verdict, the judge summarized the case against the applicant in these terms :

"The defendant was originally charged with two counts of trafficking in heroin. This is hardly surprising when one considers the amount of drugs found in her possession, that is 40 small packets of heroin found in her trousers pocket in Sham Shui Po on the morning of 9 May 1999. She was arrested, questioned, granted bail and released that afternoon.

On the following morning she was again found by customs officers behaving suspiciously on the streets of Sham Shui Po. This time the search of her pockets revealed another 40 small packets of heroin. On each occasion the defendant told the arresting customs officers that she had just bought the drugs for her own consumption with money given to her by her boyfriend. The defendant is indeed fortunate that the prosecution had agreed to proceed on lesser charges of simple possession for each seizure of drugs by the time this case came to trial.

It has now been revealed in this background report that the boyfriend with whom she lives and from whom she gets her drug purchasing money is in fact a drug trafficker..."

3. The judge continued by looking at the applicant's sad background. He noted that the Drug Addiction Treatment Centre where the applicant had previously undergone periods of detention in 1996 had failed to wean her off heroin. The report dated 17 November 1999 stated that "in view of her repeated failures, a further detention order at this stage does not seem to serve any meaningful purpose." In these circumstances, a further course of treatment was not recommended.

4. The judge then decided that in the light of the legislative changes in 1992 which increased the sentence for simple possession of heroin to seven years in order that the courts could take into account the latent risk involved where drug addicts, in possession of large amounts of drugs, may be tempted to sell some of their drugs to fund their own habit, that a three year starting point for each offence was appropriate. He reduced the starting point by a third for each offence to take into account the pleas, but he made the two sentences consecutive because the second offence was committed while on bail for the first, and indeed on the very next day.

5. Mr Tam Sze-lok, on behalf of the respondent, has very properly drawn to our attention in his written submission the fact that the judge omitted to take the first step in the approach which was suggested in HKSAR v. Wan Sheung-sum, CACC 438/1999, where this court said that before a sentencing judge enhances a sentence to take into account the latent risk of redistribution, the normal starting point of between 12 and 18 months' imprisonment should first of all be assessed. However, he went on to submit that if the judge had taken a starting point of 14 months for each charge and then added 12 months for the high latent risk in this case, the resulting starting point would have been three years on each charge, which is precisely the same as the judge had taken.

6. It is to be noted that if the same amount of heroin had been trafficked as opposed to simply possessed on two separate occasions, the starting point for each offence would have been in the region of 5 1/2 years' imprisonment, or on a plea of guilty, three years eight months. Even if some adjustment was to be made for totality, an offender who trafficked in these amounts would be facing a considerably longer term than the applicant who was faced with simple possession charges. In the first charge the narcotic content of the mixture was 15.62 grammes and, in the second, 15.06 grammes.

7. In the present case, it is clear that the judge did consider totality, and he considered that four years, in all the circumstances, properly reflected the gravity of these offences.

8. The applicant has not presented any ground of appeal as such save that she has asked that the sentences be made concurrent. Where an offence, as in this case, is committed on bail, it would be most unusual for a concurrent sentence to be imposed. This was a flagrant breach of the law as the applicant well knows, having committed exactly the same offence on two consecutive days, and we cannot agree to her request.

9. The sentence was wholly appropriate and the application is dismissed.