HKSAR v. Wong Yui Ming

CACC000348/2003

CACC 348/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 348 OF 2003

(ON APPEAL FROM DCCC 611 OF 2003)

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Coram: Hon Yeung JA and Yuen JA in Court

Date of Hearing: 23 December 2003

Date of Judgment: 23 December 2003

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J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

1.The applicant, Wong Yui-ming was arrested on 28 May 2001 and was found to be in possession of 30.36 grammes of a mixture containing 19.82 grammes of heroin hydrochloride.

2.He was charged with the offence of trafficking in dangerous drugs on 9 July 2001 and was brought to appear at the Kowloon City Magistracy. He was granted court bail to appear at his trial on 16 August 2001.

3.The applicant failed to answer bail on 16 August 2001 and a warrant was issued for his arrest. The applicant was re-arrested on 8 June 2003. In addition to the original charge of trafficking in dangerous drugs (1st charge), the applicant further faced a charge of failing to surrender to custody without reasonable cause (2nd charge).

4.The applicant appeared before Judge Toh in the District Court on the two charges. He pleaded guilty to the 2nd charge but not guilty to the 1st charge on the basis that he only had the dangerous drugs for his own use.

5.The applicant was convicted after trial on the 1st charge of trafficking in dangerous drugs as well.

6.For the 1st charge of drug trafficking, the judge adopted a starting point of 2 1/2 years and reduced it by a full one-third to 20 months' imprisonment on account of the fact that the applicant had admitted possession of the dangerous drugs.

7.For the 2nd charge of failing to surrender to custody without reasonable cause, the judge adopted a starting of 18 months' imprisonment and again reduced it by one-third to 12 months' imprisonment on account of the guilty plea. The judge ordered the sentences to run consecutively.

8.Initially, the applicant sought leave to appeal against sentence on both charges. He has abandoned his application relating to the 1st charge.

9.Mr. Mughal, on behalf of the applicant, raises no issue with the consecutive terms.

10.The only complaint is that the starting point adopted by the judge of 18 months' imprisonment for the 2nd charge exceeded the statutory limit.

11.There is no dispute that under s. 9L(3) of the Criminal Procedure Ordinance, Cap. 221, the maximum sentence for an offence of failing to surrender to custody without reasonable cause is 12 months' imprisonment on conviction upon indictment.

12.Mr. Lee, for the respondent concedes the point.

13.The applicant was re-arrested as a result of a police operation after a period of almost 2 years. The applicant suggests that he absconded because he needed to look after his daughter. This is not a valid excuse.

14.We are of the view that a starting point of 9 months' imprisonment for the 2nd charge of failing to surrender to custody without reasonable cause is appropriate. There should be a customary reduction of one-third to 6 months' imprisonment on account of the guilty plea.

15.The total sentence should be one of 26 months' imprisonment instead of 32 months' imprisonment.

16.The application for leave to appeal against the sentence on the 2nd charge is allowed and we treat the application as the appeal proper. The appeal against sentence is allowed to the extent indicated.

Representation:

Mr Robert K Y Lee, SGC of the Department of Justice for the Respondent HKSAR.

Mr Hanif Mohamed Mughal assigned by The Director of Legal Aid for the Applicant.