The Queen v. Hui Tak-chi

HCMA000784/1988

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL No. 784 OF 1988

BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 28th October, 1988

Date of Delivery of Judgment: 28th October, 1988

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J U D G M E N T

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1. The Appellant was originally charged with the offence of possession of dangerous drugs for the purpose of unlawful trafficking contrary to section 7(1) of the Dangerous Drugs Ordinance. He pleaded not guilty to the charge, but admitted possession. The prosecution was prepared to accept that plea and the magistrate convicted him of simple possession of dangerous drugs contrary to section 8 of the Orinance. He was also charged with resisting arrest and he pleaded guilty to that charge.

2. The facts are not important. What is important is that the learned magistrate sentenced him to imprisonment for 12 months in relation to the drugs offence and to imprisonment for 1 month consecutive to the other sentence in respect of the resisting arrest offence.

3. Miss Van der Eb who appears for him today in his appeal against sentence does not challenge the validity of the sentences imposed by the learned magistrate. In fact, it would be very difficult to do so given his record of previous convictions in relation to drug related offences.

4. What she does submit however is that the drugs sentence should have been ordered to run concurrently.

5. On the 29th of March 1988, the Appellant appeared before Judge Evans in the District Court and was found guilty on a Charge of possession ion of a quantity of dangerous drugs being 43 grammes of a mixture containing 3 grammes of salts of eaters of morphine. That conviction related to an offence committed on the 23rd of January 1988 and for it he was sentenced to 2 years imprisonment to run consecutively to any other sentences then current.

6. Subsequent to that appearance he appeared on two occasions, in the Magistrate's Court in relation tooffences committed both before and after the offence with which Judge Evans dealt but all were committed before 29th March. In respect of one offence, he was sentenced to imprisonment for 3 months and that was ordered to be served consecutively with other sentences and in relation to the other, he was sentenced to 18 months imprisonment and that was ordered to run consecutively with all other sentences.

7. So by the time he came to be, dealt with in respect to this offence, he was already the subject of, sentences aggregating 3¾ years in respect of drugs offences. The drugs offence with which we are now concerned was committed on the 23rd of February 1988 that is before he was dealt with by Judge Evans. If the Appellant had been dealt with on the one occasion for all these offences it is certain that the Judge dealing with him would not have extended his period of custody beyond the 3¾ years to which he was already subject when he appeared and pleaded guilty on the 14th of June 1988 in the case with which I am now dealing.

8. It seems to me therefore that, if he had been dealt with by Judge Evans, the sentence of 12 months for possession of dangerous drugs would have been made concurrent with the other sentences. For that reason therefore I think that the learned magistrate's order should be varied to the extent of making that sentence Concurrent with all other sentences. The sentence for resisting arrest being a completely different offence, as Miss Van der Eb, readily concedes, to be served consecitively with other sentences I so I do not vary that order. The result is that the sentence of imprisonment for 12 months in relation to the drugs offence is now ordered to be served Concurrently with all other sentences and the appeal is owe to that extent.

Representation:

Miss C. Vander Eb(D.L.A) for Appellant.

Crabtree, S.C.C. for Crown