HKSAR v. Tam Wa Lun

CACC000215/2004

CACC215 /2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 215 OF 2004

(ON APPEAL FROM DCCC NO. 251 OF 2004)

______________________

Coram: Hon. Yuen JA, Gall J and Lunn, J. in Court

Date of hearing: 25 August 2004

Date of Judgment: 25 August 2004

----------------

JUDGMENT

----------------

Hon. Yuen JA (delivering the judgment of the Court):

1.On 10 May 2004, the Applicant was sentenced in the District Court (Deputy District Judge E. Lin) to a total term of imprisonment of 5 years and 2 months following his plea of guilty to two charges of trafficking in dangerous drugs.

Charges

2.In respect of the first charge, the Applicant had been intercepted by police as he stepped out of his flat. There were found on his person 3 packets of dangerous drugs - being 2 packets of a mixture totalling 0.14 grs. containing 0.08 grs of heroin, and 1 packet containing a fragment of a tablet containing 0.006 grs of midazolam.

3.The Applicant was escorted back into his flat, where there were found 162 packets of dangerous drugs - being 110 packets of a mixture totalling 27.38 grs. containing 11.71 grs of heroin, and 52 packets containing 91 tablets containing 1.31 grs of midazolam. These formed the basis of the second charge.

Sentence

4.On the first charge, the judge adopted a starting point of 2 years imprisonment. After adopting the usual 1/3 discount for the Applicant's plea of guilty, the Applicant was sentenced to 16 months imprisonment.

5.As for the second charge, the judge adopted a starting point of 7 years imprisonment as he considered that the trafficking in midazolam was an aggravating factor, as were the large number of packets involved, and what the judge called the "systematic way" in which the Applicant had gone about his business by having records and detailed prices. After the usual discount for the plea of guilty, the Applicant was sentenced to 56 months imprisonment.

6.The judge ordered that 6 months of the sentence on the first charge should run consecutively to the sentence of the second charge, resulting in a total term of 5 years and 2 months.

Grounds of appeal

7.The Applicant now seeks leave to appeal. His grounds of appeal are, briefly:-

(1) since the drugs found on his person were obviously part of the larger amount found at his home, the judge should have aggregated the two amounts to arrive at an appropriate starting point;

(2) in any event, the sentences passed on the two charges should have been wholly concurrent;

(3) the judge should not have treated the trafficking in midazolam or the fact that the Applicant trafficked in dangerous drugs as a business as aggravating factors;

(4) the starting point of 7 years imprisonment on the second charge was not in accordance with the tariff set out in R v Lau Tak-ming [1990] 2 HKLR 370 and was excessive.

Aggregating the quantities for consideration of starting point

8.As the drugs found on the Applicant at the time of his arrest outside his home were obviously part of the larger amount found immediately afterwards at his home, it is clearly right that the judge should have aggregated the two amounts to arrive at an appropriate overall starting point (see the judgment of this court in HKSAR v Siu Pui-ching CACC 231/1997). Counsel for the Respondent did not seek to argue otherwise.

Lau Tak-ming tariff

9.What then would have been the appropriate starting point? The judge had referred to the decision of this court in R v Lau Tak-ming [1990] 2 HKLR 370, which had set the tariff for trafficking in heroin. In that case, it was held that 5-8 years imprisonment would be appropriate for trafficking in between 10 grs and 50 grs of heroin.

10.The total quantity of heroin involved in the present appeal (found on the Applicant's person and inside his home) was 11.79 grs. This places the case at the lower end of the above category, such that one would expect the starting point to be 5 years imprisonment.

11.However the judge took as the starting point a term of 7 years imprisonment because he regarded as aggravating factors the trafficking in midazolam and the fact that the Applicant was engaged in trafficking as a "business".

Midazolam

12.With respect, it is difficult to see how those factors could have raised the starting point by nearly 2 years. Dealing first with the midazolam, in HKSAR v Amnuaychoke Nopporn [2002] 3 HKC 640 at 643, Stuart-Moore ACJHC had held (paragraph 12):

"The question we have had to ask ourselves ... is whether the amount of midazolam maleate being trafficked [3.8 grs] should have materially altered the sentence imposed on the applicant for trafficking in this amount of heroin [15.19 grs]. The narcotic content of the midazolam was just under 4 grammes. We consider that if this had been a further quantity of the much more harmful drug, heroin, as opposed to midazolam, this would not have made more than a marginal difference, if indeed any difference at all, to the starting point the judge had correctly taken for the heroin in question [51/2 years imprisonment]. For this reason, therefore, we do not think that any further term of imprisonment, by way of enhancement of the starting point taken for the heroin, should have been incurred With the greatest respect to the judge, who had plainly given careful thought to the sentence he imposed, we consider that in this regard there was an error in principle".

13.The midazolam involved in the present appeal (the total quantity being 1.316 grs) was even less substantial than that in Amnuaychoke Nopporn. Even if one were to have treated the midazolam as heroin, the additional quantity would not have made any difference to the sentence for trafficking in heroin. Accordingly, the judge erred in principle when he raised the starting point substantially by reason of the midazolam.

Business

14.As for the fact that the Applicant had admitted that he trafficked in dangerous drugs as a business, and had business records and price details, that would also not warrant such a substantial increase in the starting point. There was no evidence that the Applicant was a manufacturer or wholesaler or "boss" who had employees to do his work on the streets. On the contrary, the evidence showed that the Applicant was a retailer who, according to the judge, was on his way to "push" the drugs himself when he was arrested. The fact that he kept records and had price differentials is neither here nor there.

Sentence

15.In the circumstances, the judge's adoption of a starting point of 7 years for the second charge was an error in principle and the total sentences were manifestly excessive. In accordance with the tariff in Lau Tak-ming, an appropriate overall starting point would have been 5 years imprisonment. The appropriate sentence is 2 years imprisonment for the first charge and 5 years imprisonment for the second charge. Adopting the usual discount for the Applicant's plea of guilty, the appropriate sentence for the first charge would be 16 months imprisonment and for the second charge, 3 years and 4 months. As discussed above, the sentences should be served concurrently.

Order

16.For the reasons given above, the application for leave is granted, the application is treated as the appeal and the appeal is allowed. The sentences of imprisonment imposed by the judge are quashed. Exercising our powers under s.83I(3)(b) of the Criminal Procedure Ordinance Cap. 221, the sentences imposed by this court on the Appellant are:

Charge 1 - 16 months imprisonment;

Charge 2 - 3 years and 4 months imprisonment.

The sentence imposed in respect of Charge 1 is to be served concurrently with the sentence imposed in respect of Charge 2. The total sentence of imprisonment imposed is therefore 3 years and 4 months.

Representation:

Mr J. Dunn instructed by Herman HM Hui & Co for the Applicant (Appellant)

Mr Tam Sze-lok, SGC for the Respondent