HKSAR v. Lam Sze Wai

CACC 125/2019

[2020] HKCA 599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 125 OF 2019

(ON APPEAL FROM HCCC 283/2018)

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BETWEEN

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Before:  Hon McWalters JA in Court

Date of Hearing:  3 July 2020

Date of Judgment:  3 July 2020

Date of Reasons for Judgment:  27 July 2020

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REASONS FOR JUDGMENT

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1.At the Eastern Magistracy on 3 September 2018, the applicant was committed to the Court of First Instance for sentence after having pleaded guilty to two counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. At the High Court he appeared before Campbell-Moffat J (“the judge”) on 11 April 2019, and was sentenced by her to a total term of 12 years and 10 months’ imprisonment.

2.The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentences.

3.At the hearing of the application I refused it.  These are my reasons for doing so.

The charges

4.The first charge alleged that on the 3 June 2017 the applicant unlawfully trafficked in 371 grammes of a solid containing 312 grammes of cocaine (“count 1”).

5.The second charge alleged that some seven months later, on 16 January 2018 the applicant unlawfully trafficked in 11 grammes of a crystalline solid containing 7.84 grammes of methamphetamine hydrochloride (“Ice”) and 14.9 grammes of a powder containing 12.60 grammes of ketamine (“count 2”).

The Summary of Facts

6.The Summary of Facts which was admitted by the applicant and used for the purpose of his sentencing, revealed that on 2 June 2017, through the introduction of an acquaintance, a 15-year-old boy (PW1) met up with an unidentified male (“Male A”) to take part in delivering dangerous drugs to customers.  Male A promised to give PW1 HK$1,000 as his reward for delivering the dangerous drugs.  They waited in a McDonalds restaurant in Mong Kok until 7:30 pm but did not receive any call for the delivery of drugs.  Male A then told PW1 that there would be no drug delivery order on that day.

7.On 3 June 2017, PW1 received a call from Male A and was told to go to Mong Kok and to again wait for calls.  At around 8 pm, PW1 received a call from another male, who PW1 later identified as the applicant, and was told to go to Hung Hom.  After PW1 arrived at Hung Hom, he called the applicant again and the applicant said he was still “packaging the goods”.  Ten minutes later, the applicant called PW1 back and instructed him to meet up outside a convenience store.  He told PW1 to pretend not to know him and to follow him to the male toilet.  PW1 did as he was instructed and when he followed the applicant into the male toilet the applicant gave him a paper bag.  PW1 had earlier received instructions over his telephone from an unidentified caller to deliver the paper bag to Wah Lai Estate, Mei Foo. 

8.PW1 took a taxi to Wah Lai Estate but as soon as he alighted from the taxi he was intercepted and searched by police officers. The police officers found a total of 16 resealable plastic bags, containing 312 grammes of cocaine, wrapped in paper inside the paper bag that PW1 was carrying.  These drugs were the subject of count 1. 

9.Investigations by the police established that on 2 June 2017 the applicant had booked a hotel room near where PW1 had been told to wait and had checked out the next day.  He had used his own HKID card at registration and CCTV footage showed the applicant checking in at the front desk, and on the next day leaving the hotel carrying a paper bag.  Thereafter, CCTV footage in the vicinity captured PW1 following the applicant into the male toilet, and later coming out of the toilet with the paper bag in his hand.

10.In addition to this evidence, which linked the applicant to the location and to PW1, there was evidence which linked the applicant to the drugs.  Forensic examination revealed the presence of the applicant’s left palm print on the paper wrapping that was used to wrap the 16 plastic bags of cocaine in count 1. 

11.In the early hours of 16 January 2018, the applicant was intercepted and searched by police officers at the junction of Fa Yuen Street and Argyle Street, Mong Kok.  In the front pocket of the applicant’s pants, the police officers found 11 resealable plastic bags containing the ketamine, and Ice that are the subject of count 2.  Under caution, the applicant claimed that he had purchased the Ice for his own consumption. 

12.In a subsequently conducted video record of interview (“VRI”), the applicant, in relation to count 1, denied knowing PW1 or using him to traffic in cocaine.  He admitted that he had booked a hotel room in Hung Hom on 2 June 2017 but he claimed it was for his consumption of, and the safekeeping of, the cocaine.  He said that if there was any cocaine left-over he would sell it to other people with the assistance of his friend, “Ling Jai”.  He said he passed the paper bag with cocaine to PW1 on Ling Jai’s instructions. 

13.In relation to count 2, the applicant stated in the VRI that he had purchased the drugs in question for HK$4,500 for his own consumption on 16 January 2018 in Mong Kok.  He claimed he had been addicted to drugs for over 10 years and would consume about 1 gramme each of ketamine and Ice every day.  The drugs seized from his person would have lasted him one to two weeks.  He said that he worked as a transportation worker, earning about HK$900 to HK$1,000 daily.

14.The estimated value of the cocaine in count 1 was HK$497,882; and in count 2, the estimated value of the ketamine was HK$8,240 and that of the Ice was HK$6,138. 

The mitigation

15.The applicant was 32 years old at the time of his sentencing.  He has a girlfriend who had very recently given birth to his baby daughter.  He has five previous convictions since turning 15 years of age and two of these are drug-related.  In February 2013, he was sentenced to 6 months’ imprisonment, suspended for 24 months, for the offence of possession of a dangerous drug and in August 2013, he was sentenced to 5 years’ imprisonment for unlawfully trafficking in a dangerous drug.  In respect of this latter sentence he was discharged from prison in February 2017, only four months before the offence in count 1 took place.   

16.The applicant’s counsel at trial, Mr David Khosa, tendered to the court two mitigation letters, one written by the applicant and the other by his mother.  In his letter the applicant expressed remorse for his actions and a desire to re-start his life in a productive way after release from prison.

17.Mr Khosa also invited the judge to sentence the applicant by combining together the drugs from both counts and adopting cocaine as the base drug under the combined approach.  That would produce, Mr Khosa submitted, a total amount of 332.44 grammes of cocaine for which the arithmetic starting point would be about 13½ years.  However, he also accepted that two distinct offences were involved and the issue of totality would be in the court’s discretion. 

18.Mr Khosa accepted that the starting point for the sentence for count 1 had to be enhanced pursuant to section 56A of the Dangerous Drugs Ordinance, Cap 134 because a minor had been used in committing the offence.  However, Mr Khosa asked the judge to take into account the fact that the applicant did not recruit PW1, who had been recruited by Male A, and that the applicant had done no more than pass the drugs to PW1. 

19.Mr Khosa invited the judge to accept that part of the drugs from count 2 were for the applicant’s own consumption, as the applicant had claimed when arrested and also in his VRI.  He informed the judge that the applicant had tested positive for cocaine in a urine test that had been conducted by Correctional Services Department (“CSD”) staff at Lai Chi Kok Reception Centre 3 days after his arrest.  Notwithstanding that the judge indicated she was unwilling to accept, in the circumstances of this case, a bare assertion of self-consumption from the bar table, the applicant confirmed through Mr Khosa that he would not testify in support of his claim.    

The judge’s Reasons for Sentence

20.Having set out the factual background of the two counts and the applicant’s answers in the VRI concerning his drug use frequency and financial means, and noting that in the CSD drug test the applicant did not test positive for either Ice or ketamine, the judge said she would not discount any part of his sentence on either count for self-consumption as there was no evidence coming from the applicant in support of his claim.  

21.Whilst the judge accepted that the applicant was remorseful for his conduct, she found that he had a long criminal history which started when he was only 15 years old.  Of particular significance was the fact that the applicant was discharged from prison for his last conviction, which was also for drug trafficking, in February 2017.  This meant, the judge noted, that it took the applicant only four months to re-offend.  Furthermore, by his involvement in count 2 the applicant showed he was not deterred by the earlier arrest of PW1 in respect of count 1.

22.In determining the appropriate sentence for count 1, the judge directed herself in accordance with the Court of Appeal’s judgment in R v Lau Tak Ming & Another[1] and adopted an initial starting point of 13 years and 9 months’ imprisonment for the 312 grammes of cocaine. 

23.She then enhanced this initial starting point by one year in accordance with section 56A of the Dangerous Drugs Ordinance, Cap 134 as she found the applicant had taken part in a joint enterprise which used young children to recruit other young children as couriers.  In this respect she relied on HKSAR v Ng Hon Keung[2] and HKSAR v Wong Chun Hin[3], although she also accepted that there was no evidence the applicant had personally recruited PW1.  For the applicant’s role as a quartermaster, the judge further enhanced the sentence by 6 months.  This produced a final starting point for count 1 of 15 years and 3 months.

24.In relation to count 2, which involved both Ice and ketamine, the judge firstly directed herself with respect to HKSAR v Tam Yi Chun[4] and Secretary for Justice v Hii Siew Cheng[5].  For the 7.84 grammes of Ice, the judge adopted 6 years as her initial starting point, and 4 years and 1 month as her initial starting point for the 12.60 grammes of ketamine.  However, she considered that simply adding together the two sentences to produce a total sentence of 10 years and 1 month’ imprisonment would result in an excessive sentence for the applicant’s offending in count 2.

25.Having reminded herself of the combined drugs approach set out in HKSAR v Chan Yuk Leong[6], the judge took Ice as the base drug for her calculation as it was the more serious drug, even though the amount involved was less than the ketamine.  In applying the combined approach, the judge said:

“I have taken, as my initial reference point, the sentence for the 7.84 grammes of ‘Ice’ because that is, by far, the more serious drug even though it is a lighter quantity. The starting point after trial for that drug is 6 years. I also took as an upper range of sentencing the 10 years and 1 month if the two were added together and I then compared that range with the ratio and conversion tests. In order to reflect the 6-year starting point that I have mentioned and the fact that you were in possession of the 12.60 grammes of ketamine as well, I considered that the conversion test was the most appropriate to reflect your possession of both drugs in order to traffic in them. I did that on the basis that you would have to be trafficking 50 grammes of ketamine to receive a sentence of 6 years’ imprisonment or 2.5 grammes of ‘Ice’ to receive a sentence of 4 years and 1 month.

Adding back the 2.5 grammes of ‘Ice’ to the 7.84 grammes of ‘Ice’, which you were trafficking, results in a sentence of 7 years whilst adding back 50 grammes of ketamine to the 12.60 grammes of ketamine, which you were trafficking, to the original sentence of 4 years and 1 month results in a sentence of 6 years and 2 months.

I do not consider 6 years 2 months reflects the criminality of your offending on Count 2 and so I consider a 7-year starting point to be appropriate for Count 2, which will also, of course, be discounted by one-third for your early plea.”[7]

26.After considering the issue of totality, the judge passed sentence as follows:

“These offences were seven months apart and were wholly dissimilar. In the first, you were involved in a joint enterprise which used children to recruit couriers. You appeared to have the role of someone who acted as quartermaster supplying drugs in quantity for others to deliver on to the consumer. I can see no reason at all why the sentences which I pass upon you should not be served wholly consecutively. However, if I did so, you would be facing a starting point of 22 years and 3 months. I have therefore compared that sentence with the sentence you would face if these offences had taken place at the same time and were similar in nature and if they were all converted to the same drug, that is cocaine.

If you had been in possession of 332 grammes of cocaine, you would have received a sentence of 14 years as a starting point plus the extra 12 months for using a minor and 6 months because of the role which you played in Count 1, making 16 years and 6 months. If that was the case, you would be serving a sentence of 11 years after a one-third discount for your plea.

To reflect the wholly dissimilar nature of these crimes and the time gap between them, you will go to prison on Count 1 for 10 years and 2 months, and on Count 2, you will go to prison for 4 years and 8 months, 24 months of which will be served concurrently to Count 1 and 32 months of which will be served consecutively. You will therefore go to prison for 12 years and 10 months in total.”[8] (Emphasis added.)

The applicant’s grounds of appeal

27.Mr HY Wong, counsel for the applicant, submitted that the resulting sentence for the 2 counts, ie 12 years and 10 months’ imprisonment, was manifestly excessive, and relied on two grounds of appeal.  

28.In his first ground, Mr Wong said although there were the aggravating features of using a minor and performing the role of a quartermaster, the judge erred by just adding up the individual enhancements without applying the totality principle to them or to her final starting point.  In support of this submission he relied on what had been said by Zervos JA in giving the judgment of the Court of Appeal in HKSAR v Islam Azharul[9].

29.Also, Mr Wong submitted that a sentence of 12 years and 10 months’ imprisonment would be equivalent to a starting point of 19 years and 3 months before plea, which was akin to trafficking in some 570 grammes of cocaine notwithstanding notionally the applicant had only trafficked in 332 grammes of cocaine, had all the drugs been treated as being of the same type.

30.Regarding his second ground, Mr Wong said the judge made a miscalculation when assessing the notional starting point for 332 grammes of cocaine.  The judge correctly assessed the starting point at 14 years, but after adding on the enhancements for the aggravating features, which amounted to 1 year 6 months, miscalculated the final starting point as being 16 years and 6 months, when it should have been 15 years and 6 months.  When discounted by one third for the applicant’s plea of guilty, this correct starting point would become 10 years and 4 months rather than the 11 years which the judge used. 

31.Mr Wong argued that the judge had clearly intended to add 1 year and 10 months to 11 years as though the applicant had committed a single trafficking in 332 grammes of cocaine and pleaded guilty.  By adding this 1 year and 10 months to the correct enhanced starting point of 10 years and 4 months the resulting sentence would be of 12 years and 2 months for the two offences, rather than 12 years and 10 months.         

The respondent’s reply

32.Mr Franco Kuan, for the respondent, in opposing the application submitted that in fact the judge could have further enhanced the sentence in respect of the aggravating factors present in this case, as her enhancement only amounted to a 7.2% increase.  For instance, the applicant’s use of a minor could have warranted a significantly higher enhancement in line with HKSAR v Chan Ka Shing[10] in which the Court of Appeal approved of an enhancement of 2 years from a starting point of 13 years, reflecting a 15% increase.  Mr Kuan noted that the applicant had a long history of criminal conduct and it was only shortly after serving 5 years in prison for the previous trafficking conviction that he committed count 1.  The sentence could have been further enhanced for the applicant’s tendency to reoffend which could be up to a year.  Furthermore, count 1 and count 2 were wholly unrelated and this added to the overall culpability of the applicant. 

33.In reply to the second ground, Mr Kuan conceded that the judge had made a miscalculation in that the starting point for trafficking in 332 grammes of cocaine would have been one of 10 years and 4 months and not 11 years.  However, he said this miscalculation is immaterial for three reasons.  Firstly, the judge had correctly applied the relevant tests in cross-checking and her methodology was correct.  Secondly, she did not use the wrong figure as the starting point for sentencing, but merely as a tool to cross-check whether the total sentence would be excessive. Thirdly, the miscalculation only resulted in a difference of 8 months, which could not render the total sentence manifestly excessive.

34.Finally, Mr Kuan argued the judge could have further enhanced the sentence in count 2 on the basis that multiple drugs had been trafficked. 

Discussion

35.In respect of count 1, ie trafficking in 312 grammes of cocaine, the arithmetic starting point is 164.16 months, ie 13 years and 8.16 months.  The initial starting point of 13 years and 9 months adopted by the judge is, therefore, unassailable.

36.There is nothing wrong, indeed it is wholly correct, to identify aggravating factors and to enhance an initial starting point in order to reflect what they add to the gravity of the offence and the culpability of the offender.  Once that is done the sentencer must then have regard to the totality principle to make sure that the sentence he or she is contemplating imposing is not a disproportionate or crushing one.  The sentence must be just.

37.Zervos JA in Islam Azharul was saying no more than this when he said at [17] that:

“… It would be wrong in principle merely to add up the individual enhancements for a series of aggravating factors without applying the totality principle when that is appropriate. …”[11]

38.Consequently, the real question that needs to be asked is whether the judge had regard to the totality principle and if she did whether she nevertheless erred in concluding that it would not be breached by the imposition of a sentence based upon a final starting point of 15 years and 3 months’ imprisonment.

39.Here, the judge clearly considered the issue of totality in determining the amount of each enhancement and her final starting point.  This is apparent from the fact that she had correctly reminded herself[12] of the following comment of the Court of Appeal in Wong Chun Hin:

“…As a drug trafficking offence itself is going to result in an extremely long sentence, restraint should be exercised on the range of enhancement arising from other aggravating factors in order to avoid an overly severe sentence.”[13]

Later in its judgment, at [15] of Wong Chun Hin, the Court of Appeal reiterated the importance of totality, saying:

“We reiterate that a serious drug trafficking offence will itself result in an extremely long term of imprisonment. If the starting point taken for sentence is increased substantially due to other aggravating factors, the ultimate sentence will cause a defendant, in particular a young one, to face an overly severe sentence.”[14]

40.It was only after the judge had regard to the judgment in Wong Chung Hin, that she considered how much enhancement she should make for the aggravating factors which she had identified. 

41.In respect of the enhancements themselves, it must be emphasised that there is no guideline for the amount of enhancement for the aggravating factor of using a minor.  In Chan Ka Shing, the Court of Appeal approved a 2 year enhancement from a starting point of 13 years, reflecting a 15% increase and in Wong Chun Hin, the Court of Appeal took the view that a 3 year enhancement for the cross-border element and the use of a minor, reflecting approximately 14% of the starting point, was appropriate when the starting point was already 21 years and 11 months.  In fact, the Court of Appeal in Chan Ka Shing stated:

“When enhancing the sentence pursuant to section 56A(2) of the Dangerous Drug Ordinance, the court has to consider not only the percentage of the enhancement, but also the actual extent of enhancement. …”[15]

42.It is difficult to conceive of a more serious aggravating factor for the offence of unlawfully trafficking in a dangerous drug than the employment by an adult of a minor to assist in his drug trafficking enterprise.  The courts must do all that they can to protect minors from being lured into this evil activity and to deter adults from seeking to exploit them.

43.In the present case over 300 grammes of cocaine were being trafficked with the assistance of a 15 year old minor.  The one year enhancement was, if anything, unduly lenient but that may be due to the fact that the applicant was not the person who recruited and employed the minor. However, like the judge, I am in no doubt at all that the applicant was aware that minors were being employed to carry out this joint enterprise of drug trafficking of which he was a key member. 

44.The judge’s finding that the applicant occupied the role of a quartermaster was correct and required a higher starting point than that relevant to a courier.  Her enhancement was only 6 months for this aggravating factor and such an amount cannot possibly be said to be manifestly excessive.  Again, if anything it is unduly lenient.

45.In my view it is not reasonably arguable that the amounts by which the judge enhanced her initial starting point for the sentence for count 1 are manifestly excessive or that her final starting point is manifestly excessive. 

46.The applicant’s first ground of appeal appears to stem from a misunderstanding of how our sentencing tariffs for unlawfully trafficking in a dangerous drug are to be employed by judicial officers in the course of carrying out their sentencing task.  It may be helpful if I make some observations on this issue and the sentencing task generally. 

47.How a sentencer performs his task of assessing what is a just sentence may vary in different common law jurisdictions.  The approach that has developed in Hong Kong, through our case law, is a step by step approach.  Under such an approach the sentencer first identifies an initial starting point which he then enhances if there are present any aggravating factors and from this final starting point he then makes discounts for any mitigation which he accepts.  The final step is to stand back and apply the totality principle to arrive at the ultimate sentence.

48.How the judge identifies an initial starting point will depend on the nature of offence with which he is dealing but the focus of this assessment will be on the gravity of the offending.  Assessing the gravity of the offending, which focusses on what the offender did, will necessarily require the sentencer to have regard to the role of the offender in the commission of the crime, subject to the caveat that in respect of joint enterprise crimes the role or position of the offender within the joint enterprise, or what he did in furtherance of it, may not always be a basis for distinguishing him from other participants in the joint enterprise.  

49.For the offence of trafficking in a dangerous drug this first step of assessing the gravity of the offending will be carried out by reference to the tariff laid down for particular quantities of a particular kind of dangerous drug.  For other cases it will be by reference to guideline judgments of the Court of Appeal.  Such judgments have been given for various offences such as robbery, corruption offences and some sexual offences.  For other offences there may be a pattern of sentencing that is discernible from precedent cases.

50.The sentencing tariffs for trafficking in a dangerous drug, being quantity based ranges, are intended to provide no more than a quantity based starting point for a sentencer.  Quantity is regarded as the primary, but not the sole, feature of the criminality that determines the gravity of the offending.  This is because quantity directly impacts upon the harm the offending can cause to the Hong Kong community.  But, as this court has repeatedly pointed out, it is a quantity based starting point for those whose role is at the lowest level of participation in this form of criminal conduct.  This is commonly the courier.

51.Having identified an initial starting point the next step for the sentencer is to determine whether there are present in the case before him any factors which aggravate either the gravity of the offending or the culpability of the offender.  If there are then the sentencer will enhance his initial starting point to reflect the presence of these aggravating factors.  In trafficking cases the gravity of the offending will be increased by such factors as a more substantial role being played by the trafficker in the trafficking; the presence of an international element; multiple drugs being trafficked and the employment of a minor.

52.But the gravity of the offending is only one half of the sentencing task.  The other half is to examine the culpability of the offender; in a nutshell, who the offender is, as opposed to what he did.  Although I talk in terms of the two as though they were quite separate issues, the reality is that they may, at times, overlap.  Who he is may explain why the offender did what he did. 

53.The culpability of the offender focuses on matters personal to the offender which either aggravate his offending, such as being a recidivist, having committed the offence whilst on bail, or being a Form 8 recognizance holder, or may mitigate it, such as being an addict who will use a significant part of the drugs for his own consumption or who assists the authorities or, in property offence cases, who has made restitution.

54.Thus, the drug trafficking tariffs only provide a starting point in the sentencing process.  Once that starting point has been determined the sentencer is not prohibited from imposing a sentence beyond or below the particular tariff that he used to determine his starting point, as long as there is good reason for doing so.  Of course, the existence of the other tariffs can be used as a tool to assist the sentencer in ensuring that the final sentence remains proportionate to the gravity of the offending and the culpability of the offender.

55.Having gone through this process and reached a final sentence the sentencer should stand back and consider whether the sentence that he has reached through this process is a just one.  Where he is enhancing an initial starting point for the presence of aggravating factors or dealing with multiple offences this will require him to have regard to the totality principle. 

56.If, at the end of this process, he is satisfied that his sentence is a just one, then that is the sentence he imposes.

57.Notwithstanding that the steps are part of a process, the completion of each step in the process is not required to be performed in a mechanistic way. For example, a sentencer may reach a final starting point after identifying aggravating factors without stating an initial starting point and simply assess the gravity of the offending as a whole, or may state an initial starting point but then enhance that starting point by a stated amount for a number of aggravating factors without breaking it down into identifiable amounts for each aggravating factor.  The step by step approach exists to assist the sentencer by guiding him to the matters to which he should have regard but does not tie his hands in how he applies it.  Of course, the more he reveals of his reasoning, the more transparent the sentencing process becomes and the better able will all interested parties be in understanding how the final sentence was reached.

58.I should emphasise that at all stages of the process the sentencer’s discretion is engaged and as he completes each step in the process he is required to have regard to the various sentencing principles that may be applicable to the criminality with which he is dealing and to consider what weight should be given to them.  Thus, for some offences, of which drug trafficking is one example, the principles of denunciation, deterrence, protection of the community and punishment will take precedence over rehabilitation.

59.Because the weight to be given to these principles will vary from one offence to another, and from one offender to another, a just sentence will simply be one that is proportionate to the gravity of the offending and the culpability of the offender.  Both are important.  The punishment must not just “fit the crime”, but also “fit the offender”.  At times this may dictate a lenient sentence, at other times a harsh sentence.  A just sentence does not require that leniency be extended to an offender or that the offender leave court satisfied that he has been treated fairly, as desirable as this might be.  For a sentencer’s task is to have regard to more than just the interests of the offender.  He must also have regard to the victims of crime, the community at large and the sentencer’s perception of the public interest.  By having regard to all these interests and by reaching a sentence in which he applies the relevant sentencing principles, he should arrive at a just sentence, irrespective of how fair that sentence might be subjectively perceived by the offender.

60.Here the judge clearly identified aggravating factors and, as I have said, imposed sentences for them that, if anything, were unduly lenient.  Her decision to simply add the sentences for the aggravating factors together does not indicate in any way that her sentencing discretion miscarried.  Were it clear that she did not have regard to the totality principle, and that her final sentence was manifestly excessive, then simply adding together all the enhancements might explain how the sentence came to be manifestly excessive.  But, in respect of this sentence that is definitively not the case. 

61.The applicant’s first ground of appeal is not only lacking reasonable arguability it is totally devoid of any merit at all and should never have been advanced.

62.In respect of the final sentence of 12 years and 10 months it must be borne in mind that the applicant was being sentenced for two quite separate offences that had nothing in common.  They each involved different drugs and different forms of trafficking and took place 7 months apart.  As a matter of legal principal, they required to be separately sentenced and the only issue was one of totality.  Count 2 clearly added to the applicant’s culpability and part of the sentence for it would have to be ordered to be served consecutively to the sentence for count 1.  The only question is how much.

63.The quantum of consecutiveness will primarily depend upon the judge’s assessment of the offender’s culpability in the circumstances of the particular case before him.  As the Court of Appeal said in HKSAR v Mohammed Tofael Ahmed, the ultimate question is whether the “overall sentence reflects the true overall culpability”[16].

64.It would be quite wrong to judge whether 12 years and 10 months’ imprisonment is a just sentence by treating it as if an initial starting point had been adopted of 19 years and 3 months for trafficking in 332 grammes of cocaine.  Because the applicant had committed two distinct acts of trafficking separate in time, it would never have been appropriate to take a starting point based on the total amount of the drugs.  It is clear that this is not what the judge was doing.  She was referring to this notional sentence for 332 grammes of cocaine solely for comparison purposes to ensure that her final sentence, whilst reflecting the fact that two quite separate offences were involved, would not be disproportionate to the applicant’s overall criminality. 

65.The mathematical error on which the applicant relies did not impact upon the judge’s calculation of her sentence and in my view it is not reasonably arguable that had the correct comparator been available to her it would have caused her to assess a different quantum of consecutiveness and to impose a different sentence.    

Disposition

66.For these reasons I refused the application.  I reminded the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

Mr HY Wong, instructed by DLA, for the applicant