HKSAR v. Luk Yun Shing

CACC000357/1998

CACC 357/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 357 OF 1998

(ON APPEAL FROM HCC NO. 42 OF 1998)

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Coram: Hon Nazareth, Ag CJHC, Liu and Rogers, JJ.A. in Court

Date of Hearing: 7 October 1998

Date of Judgment: 7 October 1998

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J U D G M E N T

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Liu, J.A.:

1. The applicant faced four counts before Mrs Justice Bokhary. The first two counts were "trafficking" and the last two counts were "simple possession". The first two counts concerned herbal cannabis and the last two involved "Ice" and midazolam maleate tablets. He was convicted all on his own plea. He was sentenced to 1 year and 2 months for the 1st count, 2 years and 4 months for the 2nd, and again 2 years and 4 months for the 3rd and 3 months for the last count, and he was sentenced to imprisonment for a total term of 6 years and one month.

2. The 1st count was for trafficking of herbal cannabis. On 26 August 1997, the applicant was caught with a quantity of 4.75 kilogrammes of herbal cannabis at a lift lobby on the Ground Floor, Waldorf Apartments in King's Road, North Point. Immediately after his arrest, he was taken by the police to the 10th Floor of the building where a further quantity of 13.63 kilogrammes of herbal cannabis was found. The applicant admitted to trafficking in both these quantities. When the applicant was taken to his family home on the same day, 21.21 grammes of "Ice" were retrieved by the police. In another premises on the same day, 160 midazolam maleate tablets were recovered by the police. The applicant admitted to simple possession of "Ice" as well as the 160 tablets.

3. The judge took a starting point of 2 years for Count 1, 4 years for Count 2, 4 years for Count 3 and 6 months for Count 4. From these starting points, the judge gave the applicant reduction of a third for his guilty pleas and on the totality principle, the judge gave the applicant a further reduction of 2 months for Count 1, 4 months for Count 2, another 4 months for Count 3 and an additional month for Count 4. After having given the applicant all these reductions, she sentenced the applicant to a total term of 6 years and one month.

4. Mr Callaghan, counsel for the applicant, seeks leave for the applicant to appeal against sentence. Counsel submits that the quantities in Count 1 and Count 2 should have been taken together as one quantity by the judge and the applicant should have been sentenced for that one single quantity globally in the case. There was no evidence that the seized quantities were in any way segregated or to be treated as segregated in the case. In both quantities a trafficking charge was laid, albeit on the different locations where they were found but against the same accused and on the same day. Not only were the quantities in the 1st and the 2nd counts of identical substance but they were found at virtually the same time and in close proximity in the Waldorf Apartments Building. In the circumstances, these two quantities clearly constituted the same lot for the trafficking activities of the applicant on virtually the same location in the same time frame. We cannot see any good reason for considering these two quantities separately for the trafficking counts.

5. In the round, there are 13 1/2 kilogrammes of herbal cannabis in the 2nd count and about four and a half a kilogramme in the 1st count. It is conceded by Mr Wong for SAR that the 4 years' imprisonment imposed by the judge for the trafficking in the 2nd count is an appropriate sentence. Evidently, both quantities were involved in the very same trafficking to which the applicant pleaded guilty. There is much in what counsel for the applicant submits that a quantity of 18 kilogrammes in the round should attract no more than a sentence of 4 years. We accept that submission. Justice would be served by simply ordering the sentences for these two counts to run concurrently. As to the 3rd count for simple possession of "Ice" in the quantity of 21.21 grammes, the cases relied upon by counsel for the applicant are good authorities for the proposition that a like quantity for simple possession of "Ice" should be penalised by a term of imprisonment of 3 years. The case of R v Chan Shing Hing, Cr App 725/1996, the judgment of which was delivered by this court differently constituted on 9 April 1997 and the case of HKSAR v Lam Wai Ip, Cr App 214/1997, another decision given by this court again differently constituted on 12 September 1997, tend to lend support to counsel's contention that a term of imprisonment of 3 years would be the correct sentence for the quantity of "Ice", admitted to be in the possession of the applicant on the charge date. We are persuaded that the sentence of 4 years imposed by the judge on the third count for simple possession of "Ice" should therefore be reduced to 3 years. As to the simple possession of the 160 tablets, both counsel, Mr Wesley Wong for SAR and Mr Callaghan for the applicant, accept what was endorsed by Gall, J as the proper tariff in HKSAR v Lee Chi Ho, Magistracy Appeal No. 21 of 1998, in which judgment was given on 13 March 1998. Mrs Justice Bokhary was not referred to this Magistracy Appeal. The observation of Gall, J, accepted by both, reads:

"The present tariff set out for methaqualone is up to 2000 tablets, as the court thinks fit, and over 2000 tablets, six to twelve months' imprisonment."

It is agreed on all hands that for our present purpose, methaqualone is no different from midazolam.

6. The observation of Gall, J was made with respect to trafficking, not simple possession. Subject to that rider, we proceed to deal with simple possession of 160 midazolam maleate tablets weighing 3.17 grammes. We are drawn to counsel's analysis that the applicant deserves no higher than a light sentence for possessing these tablets. We regard one month as appropriate. Therefore, 4 years for the quantities in the 1st and the 2nd counts, 3 years for the 3rd count and a month for the 4th count would give a total of 7 years and one month, i.e. 85 months. From that should be deducted a third for the applicant's guilty pleas, say, 28 months. The total term would then be 57 months, that is to say, 4 years and 9 months. The sentences are commensurately reduced.

7. We grant leave to the applicant and treat his application as the appeal proper. And having heard his appeal we grant it. The total term of 6 years and one month the applicant was to serve would be reduced to 4 years and 9 months. In effect, the sentences for the 1st and 2nd counts are ordered to run concurrently and the sentences for the 3rd and 4th counts are set aside and substituted by a sentence of 3 years and a sentence of one month respectively. These sentences are all discounted by closest to a third so as to arrive at the total term of 4 years and 9 months. The sentences for the 3rd and 4th counts are ordered to run consecutively to one another and to the concurrent sentences for the 1st and 2nd counts. The appeal is, therefore, allowed and we make the orders accordingly.

Representation:

Mr Wesley Wong, Ag SADPP for Respondent.

Mr Peter Callaghan instructed by M/S Augustine C Y Tong & Co. for Appellant.