HKSAR v. Tsang Kwok Keung

CACC000401/2002

CACC 401/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 401 OF 2002

(ON APPEAL FROM DCCC 616 OF 2002)

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Coram: Hon Stuart-Moore VP and Stock, JA

Date of Hearing: 30 January 2003

Date of Judgment: 30 January 2003

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J U D G M E N T

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Stuart-Moore VP: (giving the judgment of the Court):

Background

1.On 25 July 2002, the Applicant, aged 58, pleaded guilty in the District Court before Judge Christie to three charges of trafficking in heroin hydrochloride. He was sentenced to a total of three years and four months' imprisonment against which he now seeks leave to appeal.

2.The facts were very straightforward. The police were conducting a surveillance operation directed against drug traffickers in a park in Tsuen Wan. Using an undercover officer to gather evidence, the Applicant approached this officer on three separate occasions between 5 and 10 March 2002 and each time sold him a straw packet of heroin for $100. These 'sales' were video-recorded. The combined narcotic weight of the heroin supplied on those three occasions was 0.18 of a gramme.

3.These offences were committed at a time when the Applicant was already on bail for trafficking in dangerous drugs coupled with the possession of a further quantity of drugs. As regards these earlier offences, the Applicant pleaded not guilty when he appeared on 31 January 2002 at Tsuen Wan Magistrates' Court. His trial was then set down for 19 March 2002, just nine days after his arrest for the offences with which we are presently concerned. In the result, on 19 March 2002, the Applicant was convicted after trial at Tsuen Wan Magistrates' Court of trafficking in drugs. He pleaded guilty to the second charge of possessing dangerous drugs. He was sentenced on those charges to a total of twenty-one months' imprisonment which, therefore, he was serving by the time the present case reached the District Court.

4.When sentencing in the matter presently before us, Judge Christie ordered that the totality of the sentences he imposed should be served consecutively to the overall sentence passed in the Magistrates' Court. The Applicant is therefore now serving a combined sentence of sixty-one months' imprisonment.

Sentence

5.When passing sentence, the judge took into account the fact that the Applicant had committed these offences whilst on bail for what he termed "the original offences" and, for this reason, he imposed sentences which were consecutive to those imposed in the Magistrates' Court.

6.The judge took individual starting points of two years' imprisonment for each offence about which no complaint is made in these proceedings. He then considered totality and indicated that an overall sentence of five years would have been appropriate after trial. He reduced this by one third to take into account the timely pleas entered by the Applicant. We should indicate, however, that whilst the judge imposed one year and four months on charge 3, he sentenced the Applicant to only one year's imprisonment on charges 1 and 2 in order to achieve a total of three years and four months' imprisonment.

7.Whilst, in a sentence application of this sort, it is the totality with which we are primarily concerned, the fact remains that we do not consider the judge's approach to these sentences was entirely appropriate. He imposed sentences, in order to achieve the appropriate totality on charges 1 and 2 which were less than they properly should have been. We shall return to this aspect later in the judgment.

The application

8.It was submitted by Mr H Y Wong on the Applicant's behalf that the overall sentence was manifestly excessive. He argued that the judge had wrongly "declined" to take into account, for the purposes of totality, the twenty-one-month sentence which the Applicant was by then serving and that in any event the five-year starting point adopted by the judge for the present offences was, when compared to other similar examples to have come before this court, much too high.

9.The Applicant has been before the courts on sixteen other occasions, nine of which have been in respect of drugs' offences. It is right to say, however, that the only other conviction for trafficking in drugs on his record relates to the charge which was dealt with at Tsuen Wan. Nevertheless, there was, apart from his pleas of guilty, no other mitigation of any weight which the Applicant could advance to these charges.

10.We have derived some assistance from previous decisions of this court in other similar cases in the sense that they provided reassurance that there has been general consistency in this court's approach to sentence in cases of this type where an undercover operation has revealed regular drug traffickers (see: HKSAR v Lai Yau-fat, CACC 278/2000 and HKSAR v Cheung Man-wo, Andy, CACC 303/2000). It appears from these decisions that three-year starting points reduced to two years' imprisonment after plea have been supported. Additional charges in the two cases we have cited attracted additional sentences leaving overall terms of imprisonment for four charges of trafficking in heroin at 31/2 years' imprisonment.

11.Returning to the present case, we are in no doubt that the judge was, as to the first ground of appeal, entitled to impose a wholly consecutive overall sentence to the term of imprisonment which the Applicant was already serving. He had committed these offences whilst on bail for trafficking in dangerous drugs and we can see no merit in the argument that the judge fell into error in this regard.

12.As to the second ground of appeal, the judge decided upon a starting point of two years' imprisonment for each offence which was lower than it might have been. On this basis, none of the sentences should, after deducting a third to reflect the pleas, have been less than sixteen months. No doubt when imposing 12 months' imprisonment for charges 1 and 2 the judge was keeping totality in mind but it is important nevertheless, that the proper sentence is imposed for an offence. Totality can be considered later with the imposition of partially consecutive sentences.

13.However as we are only concerned with the overall length of the sentence in this application and as we are satisfied that, in the result, it was an appropriate sentence, we do not propose to interfere with the orders made by the judge.

14.Miss Mary Sin, on the Respondent's behalf, has very properly and in the best and correct traditions of those entrusted with prosecuting cases, drawn to our attention that in another case arising from this drugs surveillance operation, Deputy Judge Woodcock imposed on 3 defendants sentences of 4 years and 2 months for trafficking in five charges and a further charge of possession, 3 years and 6 months for 3 charges of trafficking and four years for 5 charges of trafficking respectively. All the sentences imposed in that case for trafficking followed a contested trial. Miss Sin has described these sentences as manifestly inadequate and she may well be right when they are compared with the sentences which this court has upheld in similar cases where there have been pleas of guilty. Rightly, this was not a point taken by Mr H Y Wong on the Applicant's behalf in the light of the decision in R v So Hung-Lee [1986] HKLR 1049 in which it was held that the disparity in sentences imposed on different defendants in different cases by different courts is not a valid ground of appeal.

Concusion

15.For the reasons we have given, this application is dismissed.

Representation:

Miss Mary Sin, SADPP, of the Department of Justice, for the Respondent.

Mr H Y Wong, instructed by Director of Legal Aid, for the Applicant.