THE QUEEN v. CHEUNG CHO FAI

Headnote

Sentence for an offence must be in accordance with the practice prevailing at the time of commission of the offence.

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JUDGMENT

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Power, J.A.:

1. The applicant pleaded guilty to two counts of possession of dangerous drugs for the purpose of unlawful trafficking and were sentenced to terms of imprisonment of eight years on the first charge and five years on the second charge and those terms were ordered to be served concurrently. He now appeals against those sentences.

2. The counts were particularized as follows: firstly, that on the 7th of March 1989 in the rear lane outside 180 Pratas Street, Shamshuipo, he had in his possession a dangerous drug namely 1,340.22 grammes of a mixture containing 71.83 grammes of salts of esters of morphine for the purpose of unlawful trafficking, secondly, that he and another person on the same day, the 7th of March had inside Room 4, 2nd floor, No.180 Pratas Street, Shamshuipo, in their possession a dangerous drug, namely 669.99 grammes of a mixture containing 36.39 grammes of salts of esters of morphine, for the purpose of unlawful trafficking.

3. The facts revealed that when the applicant was first seen by the police officer, he made an attempt to escape, but was apprehended and a bag which he abandoned in the course of the chase and which contained the drugs particularized in the first count was then recovered by the police. He then volunteered that he had more drugs at his home, and the drugs the subject of the second count were recovered therefrom.

                    The trial judge when sentencing said:

"I sentence you on the basis of the quantity of these drugs, that is, some 2,000 grammes. It was a large quantity. The only matter in mitigation is your plea of guilty which does merit a substantial discount. Had you been convicted after trial, I would have sentenced you to a total of 10 years' imprisonment. In the circumstances, you will go to prison for 8 years. That will be the sentence on the 1st count and there will be a concurrent sentence of 5 years on the 2nd count."

                    The applicant now appeals, urging that the starting point taken by the trial judge was too high. He submits that as regards toe first count the trial judge arrived at a wrong starting point by mistakenly looking at the totality of drugs involved in both counts. It is submitted that the first count should have been looked at in isolation, that a starting point of eight and a half to nine years would have been proper and that, upon plea, this should have been reduced to a sentence of imprisonment for six years. There was argument advanced to us to suggest that the sentence of five years on the second count was wrong, but it was submitted that this sentence should, as indeed it was, have been ordered to be concurrent. It was submitted also that the trial judge should have borne in mind the fact that the existence of the drugs in the second count was only made known to the police through an admission by the applicant.

                    We are satisfied that this approach is misconceived. The trial judge was clearly looking at the totality of drugs involved in both counts when he said:

"I sentence you on the basis of the quantity of these drugs, that is, some 2,000 grammes."

We are satisfied that a totality of ten years overall which he arrived at was, in the circumstances, correct and that the discount of two years for the plea of guilty was also correct.

                    The arguments advanced by Mr. Eaton on the first ground of appeal fail.

                    In the second ground, Mr. Eaton urges us to take into account the fall in purity in No.3 heroin and to modify the tariffs set out in CHAN Chi-ming accordingly. In the recently issued decision in R. v. LAU Tak-ming Criminal Appeal No.230 of 1989, the following observation was made:

"'In our judgment the trial judge fell into error when he applied the guidelines in CHENG Yeung. They were not operative at the time of offence or conviction'. As was said by Cons V.-P. in delivering the judgment of the court in R. v. CHAN Ka-wai, the court takes as settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence."

The guidelines in CHAN Chi-ming were the proper guidelines to follow when dealing with No.3 heroin at the time when sentence was being passed. We are satisfied that the trial judge rightly applied those guidelines and would have been wrong if he had made any discount because of a suggested drop in purity. The second ground of appeal also fails and the application for leave to appeal against sentence is therefore dismissed.