HKSAR v. LO LAP KWOK

CACC 47/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 47 OF 2003

(ON APPEAL FROM HCCC 91 OF 2002)

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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):

Introduction

1. On 21 January 2003, the Applicant, aged 23, and Loy King-pui (D2) pleaded guilty in the Court of First Instance before Pang J to the first count of an indictment alleging that they had jointly trafficked in a crystalline solid containing 41.60 grammes of methamphetamine hydrochloride ("ice"). The Applicant was sentenced to five years and four months' imprisonment. This was ordered to run consecutively to the sentence of six and a half years' imprisonment which he was already serving, making a total of eleven years and ten months' imprisonment.

2. The Applicant now seeks leave to appeal against the length of his sentence mainly on the ground that the judge failed to give sufficient consideration to the principle of totality when imposing a wholly consecutive sentence.

The facts

3. The facts were simple. On 10 April 2001, police were watching the Applicant's movements in Quarry Bay. He was with Loy King-pui (D2) and two others. After the Applicant had split up with D2, police noticed that D2 made a telephone call. Shortly afterwards, D2 was arrested and found to be in possession of a solid containing 5.93 grammes of ketamine hydrochloride and a crystalline solid containing 13.78 grammes of ice. These drugs were in due course made the subject of Count 2, a trafficking charge against D2 only.

4. The Applicant was also arrested. He led the police to a place where he had hidden a cigarette box containing the ice to which the first count related. The Applicant admitted that he had concealed the dangerous drugs after D2 had parted company with him. D2, for his part, later admitted that the ice which had been found in his possession had originally come from the cigarette packet. The Applicant and D2 both said that they had jointly purchased the ice for a total of $3,400.

Mitigation and sentencing

5. Counsel for the defence in the court below outlined how the Applicant already came to be serving a sentence of six and a half years before his appearance on this indictment. His version of events, which he was able to give from memory having also represented the Applicant at his previous trial, was not disputed by the prosecution. Strangely and somewhat irresponsibly, it seems that the police had not taken the trouble to find out the facts of the previous case or even to update the Applicant's criminal record showing that there had been a conviction. In the event, prosecuting counsel, in this highly unsatisfactory state of affairs, was left unaware of the earlier offence or the sentence imposed for it.

6. It eventually emerged that the previous offence had occurred about two days before the present offence and that it also concerned trafficking in ice. The Applicant had received his sentence following a plea of guilty before a different judge. It was rightly emphasized in mitigation that the Applicant was unaware that he would be arrested in relation to the earlier offence until after his arrest in the matter presently before us. The offences were apparently investigated by separate police teams. In all the circumstances, including the "proximity" of the trafficking offences and the fact that the Applicant had not been on bail at the time of the later offence, counsel urged the judge to keep in mind the totality of the sentence the Applicant would have to serve.

7. The judge made reference to the guidelines set out in Attorney General v. Ching Kwok-hung [1991] 2 HKLR 125 at 130, commenting correctly that the quantity with which he was concerned for sentencing purposes fell into a bracket of between seven and ten years' imprisonment for amounts of between 10 and 70 grammes. He then took an eight-year starting point before reducing this to five years and four months to reflect the Applicant's plea. The judge went on to say:

"For the (Applicant), his counsel, Mr So, has invited the court to consider the totality principle, when I pass sentence for this offence in relation to the offence he committed in April of last year (sic) for which he was sentenced to 6 1/2 years. Insofar as they were distinct offences involving separate incidents of trafficking in 'Ice', I take the view that the sentence should be served consecutively. The 5 years and 4 months prison term for the 1st count is to be served consecutively to the offence for which he was convicted on June of last year." (Appeal Bundle p.5) (Emphasis added)

The application

8. It is apparent that this is one of those cases, fortunately rarely encountered these days, where the consolidation which was needed to bring both indictments before the same judge for sentencing purposes had somehow avoided the usual checks which are made to ensure that connected cases are dealt with before the same judge. If this had not slipped through the net, it may be that the problem, which in our view plainly exists with regard to the sentencing of the Applicant on the occasion with which we are concerned, would never have arisen. We have not been provided with any satisfactory explanation as to why there was no consolidation for sentencing purposes save that it may be that the attention of the prosecution was never alerted to what had occurred because of the failure by the police to make the appropriate computer checks connecting the two cases. Mr Kelvin Lee, for the Respondent, undertook to notify those in his Department who take responsibility for ensuring that situations of this kind do not arise in the hope that repetition of such an event will not occur.

9. As it is, the Applicant has received a combined sentence of just under twelve years for trafficking in a total quantity of 106.03 grammes of ice. This represents an overall starting point of eighteen years' imprisonment before plea. On the first indictment, the six-and-a-half-year sentence, which for some reason reflects a slightly higher than usual discount, arose from a starting point of ten years' imprisonment and on the present indictment there was an eight-year starting point.

10. The sentencing error in the present case is exposed by reference to the guidelines in Attorney General v. Ching Kwok-hung (above) which provides that for between 70 and 300 grammes of ice, a bracket of ten to fourteen years' imprisonment after trial is appropriate. The combined quantity of 106.03 grammes of ice involved in the two offences fell towards the lower end of the bracket applicable for 70 to 300 grammes where an appropriate starting point after trial would have been in the region of about 11 years. However, the consecutive sentence imposed on the Applicant had given him a notional starting point of eighteen years which would have been appropriate for someone trafficking in 600 grammes of ice under the Ching Kwok-hung guidelines.

11. It seems to us that defence counsel's mitigation in the court below, to the effect that totality needed to be taken into account, had gone unheeded with the result that a sentence was imposed which was out of all proportion to the quantity of ice being trafficked by the Applicant. Even granted that the offences were on separate occasions, the resulting sentence effected by the judge was, in our opinion, manifestly excessive.

12. Taking a fresh approach to the sentencing exercise, we consider, as we have said, that for the whole of the quantity of ice involved in both indictments, namely about 106 grammes, a proper starting point would have been in the order of eleven years' imprisonment which, after plea, would in normal circumstances, where a single offence involving that quantity had been committed, have resulted in an overall sentence of seven years and four months.

13. Although the present count was a separate and distinct offence, we are left in no doubt that this did not justify the imposition of a wholly consecutive sentence, the effect of which was to extend what would have been the appropriate sentence for one offence by four and a half years. In this light, we consider that an increase of eighteen months on the Applicant's existing sentence of six and a half years' imprisonment would have dealt adequately with the fact that this was a further offence committed on a different occasion.

14. If, as defence counsel in the lower court had very properly argued, the Applicant had been on bail at the time of his second trafficking offence, the position would have been materially different. The Applicant was in no such position but he was, it seems to us, sentenced as if he had been.

15. Although Mr Bedford, who did not appear in the court below, made a number of submissions on other aspects of the case in his written argument, these did not assist the Applicant.

16. So far as the totality argument is concerned, we are somewhat disappointed to find that the Respondent thought it proper to seek to uphold the overall length of the Applicant's sentence when we would have hoped that it must have been abundantly clear that this sentence was far too long.

Conclusion

17. For the reasons we have indicated, we shall give leave and, treating the hearing as the appeal, we shall allow the appeal. Whilst the sentence of five years and four months' imprisonment on the present indictment is in itself unimpeachable, and will therefore stand, we shall order that this is made consecutive to the Applicant's earlier sentence of six and a half years' imprisonment to the extent of eighteen months only, making an overall sentence on both indictments of eight years' imprisonment. This represents a reduction in the Applicant's total sentence of three years and ten months and, to this extent, the appeal succeeds.