HKSAR v. TANG KWAI CHOI

HCMA57/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.57 OF 2000

(ON APPEAL FROM WSCC NO.11532 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 23 December 1999 of six counts of trafficking in a dangerous drug. He was sentenced to six months' imprisonment on each count, and the sentences are to run concurrently.

2. The facts were that the police, knowing that a sale of various drugs was taking place in night clubs and discotheques in Hong Kong, set about an operation of sending persons into those premises to ascertain what traffick there was in various drugs. On various occasions between 20 August 1999 and 30 August 1999, in a total of three different premises on six different occasions, the appellant who had come to know one of the undercover officers offered to him drugs. The officer accepted that offer, paid the money and received the various drugs set out in each of the charges.

3. It is important to note that the premises were on both sides of the harbour and that there were a number of different premises. Also important to note is that the approach was made by the appellant to the undercover police officer with an offer for sale of the drugs on each occasion. This was not a case of police officer approaching and seeking the sale of drugs but of being approached on each occasion, and the purchase was being asked of him.

4. The magistrate in arriving at his sentence first of all determined the totality of sentence and having done that, arrived at a sentence for each of the offences which he treated as concurrent. With respect to him, this was not the correct approach. I am referred to HKSAR v. Cho Kwun Wah, HCMA No.81/1998 where it was held that the judge's approach to the sentence was wrong in principle because he considered totality before the appropriate penalty for each offence. In those circumstances, it was held that it was appropriate for an appellate court to look anew at the sentences.

5. In this case, the proper approach would have been to have arrived at the sentence in respect of each of the offences and then, having done that, to arrive at the appropriate totality by a series of consecutive or concurrent sentences, and that, in this case, is what I propose to do.

6. The quantities of drug in each of the offences presently before me ranges from 25 milligrammes of ecstasy in the 5th charge to 682 milligrammes of ecstasy in the 3rd charge. The 6th charge involved a small quantity of cannabis. The tariff in respect of ecstasy is set out in HKSAR v. Lee Tak Kwan [1998] 2 HKLR 46. There the Court of Appeal set out as guidelines for ecstasy :

"Up to 25 gms - entirely within the discretion of the sentencer

Over 25 to 400 gms - 2 to 4 years"

This means that the sentence is up to two years if under 25 grammes and entirely within the discretion of the sentencer.

7. I have before me a total of slightly less than one gramme of ecstasy (if the totality of the drug is taken into account), that being so, it seems to me that although an arithmetic approach is not correct, that a sentence of two years as a starting point in respect of each of the sentences is too high. Accordingly, in respect of the 1st charge which involves 28 milligrammes of ecstasy, I take as a starting point three months' imprisonment. Taking an immediate custodial sentence as being the appropriate one in the circumstances of this case - those circumstances being repeated approaches over a short period of time, pressing the sale of the drug in varying premises to which the appellant must have travelled to p eddle his wares, it indicated a consistent pattern of trafficking in drugs and an approach with a degree of aggression. That sentence of three months' imprisonment will be reduced to two months' imprisonment by virtue of the plea of guilty, there being no other significant mitigation and the appellant not having a clear record. In respect of the 2nd charge of 108 milligrammes, the starting point is four months' imprisonment, reduced to 21/2 months' imprisonment. The 3rd charge of 682 milligrammes, I take as my starting point seven months' imprisonment which is reduced to five months' imprisonment by virtue of the plea. The 4th charge of 85 milligrammes, I take as a starting point of four months which I reduce to 21/2 months. The 5th charge of 25 milligrammes, the three months' imprisonment is reduced to two months by virtue of the plea. The 6th charge of a small quantity cannabis, I take as a starting point one month imprisonment and reduce it to two weeks.

8. The offences are readily divided into incidents when they took place. The 2nd and 3rd were at the same premises on the same evening, although they were entirely separate sales. The 4th and 5th were at the same premises but were entirely different sales. In all the circumstances, I consider the appropriate totality should be one of 10 months' imprisonment. Sentence on the 1st charge will be consecutive to the 2nd and 3rd charges which will themselves be concurrent; sentences on the 4th and 5th charges, whilst concurrent in themselves, will be consecutive to sentence on the 1st charge; and that on the 6th charge will also be consecutive, making a total of nine and a half months and two weeks imprisonment.

9. The appeal is allowed to that extent.