HKSAR v. Au Yeung Sing

CACC000155/1997

IN THE COURT OF APPEAL OF THE HIGH COURT

1997, No. 155
(Criminal)

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Coram: The Hon. Power, V.-P., Saied and Leong, JJ. in Court

Date of hearing: 20 August 1997

Date of delivery of judgment: 20 August 1997

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J U D G M E N T

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Saied, J. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence. The Applicant pleaded guilty to trafficking in a dangerous drug contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Twenty plastic packets containing a mixture totalling 385.20 grammes were found by the police on 23rd February 1994 inside the Applicant's premises which upon subsequent analyses by the Government chemists were found to contain a total of 133.02 grammes of salts of esters of morphine. The Applicant readily admitted the substance was white powder which he said he was keeping for one called Ah Chiu who had promised to pay him $1,000.00 each week as rent. He said that he had already been given $600.00 by Ah Chiu and he repeated as much in his caution statement.

2. The Applicant was arrested on 23rd February 1994 and was allowed bail two days later. He jumped bail and was re-arrested on 19th October 1996. His counsel asked for credit for his early plea of guilty, his co-operation with the authorities backed by his offer through his counsel to give evidence against the other man who had since absconded and it was submitted that his role in the trafficking was minor for which his award was extremely small.

3. The learned trial judge said that he was prepared not to take into consideration the fact that the Applicant had absconded before trial. He noted from the Applicant's criminal record that "apparently" this was his first offence in dangerous drugs. That is not quite correct as he had one previous conviction on 2nd March 1994 of possession of dangerous drugs for which he was placed on probation for twelve months. The learned trial judge described him as a "willing and active party to the crime" and saying that it fell within the parameter of R. v. Lau Tak Ming [1990] 2 HKLR 370, took a starting point of 10 1/2 years which he reduced to seven years imprisonment after allowing a discount of one third for his plea of guilty.

4. The learned defence counsel then submitted that the sentence be made concurrent to the one which the Applicant was then serving to which the learned judge said "What sentence? Is he serving another sentence". The defence counsel then appearing for the Applicant said "Yes, he is. It is largely for possession of a false ID card which although I did not address you on the point, we would say is tied in with this effect and I would ask you to make it ..... the two sentences concurrent rather than consecutive". The trial judge then said "I think the sentence should be consecutive to the present sentence he is now serving because it is completely unrelated to the dangerous drugs."

5. The Applicant now submits that the trial judge erred in law in that he neglected to take into account when considering sentence that the Applicant was already serving a term on imprisonment of 14 months in relating to various offences. His criminal record indicates that on 28th August 1996, he was convicted of possession of forged ID card and attempted escape from lawful custody for which he was given consecutive terms of six months and one month imprisonment. The sentence of ten months imprisonment for blackmail on the 26th September was made concurrent to that previous sentence and the four months imprisonment imposed on 1st October 1996 for breach of the probation order was made consecutive to the sentence imposed on 28th August 1996. So that by the time of the present sentence he was effectively serving a sentence of 14 months imprisonment. The guideline authority of Lau Tak Ming indicates that the tariff after trial for trafficking in dangerous drugs between 50 grammes and 200 grammes is eight to twelve years. The learned trial judge took his starting point of 10 1/2 years which we think is an entirely proper one within the applicable guidelines.

6. The main complaint however is that the sentencing judge failed to take into account the sentence that the Applicant was already serving. It is submitted that had the trial judge been aware of the sentence that he was already serving, he might have made the sentence partly concurrent or partly consecutive. This matter was brought to the attention of the trial judge and it is futile to say that an experienced judge as the trial judge then proceeded to make the sentence consecutive without having due regard to what had been submitted to him.

7. We find no substance in the submission that has been made to us. We are satisfied that once the matter was drawn to the attention of the judge, he considered it and reached the conclusion, in view of those previous offences, that it was an appropriate case which deserved a consecutive sentence.

8. This application is accordingly refused.

Representation:

Mr. I. Grenville Cross, SC & Ms. Chan Fung-shan, SGC for DPP.

Mr. McGuinniety, instructed by Messrs. Wong & Partners for the Appellant.