HKSAR v. Ramesh Karki

HCMA 559/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 559 OF 2004

(ON APPEAL FROM KCCC 3908/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 25 August 2004

Date of Judgment: 25 August 2004

Date of Reasons for Judgment: 14 September 2004

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R E A S O N S  F O R  J U D G M E N T

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1.The Appellant was convicted in the Magistracy of one count of Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and one count of Breach of Deportation Order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115.  The Appellant, who was represented, pleaded guilty to both charges.

2.The Magistrate adopted a starting point of 21 months’ imprisonment for the trafficking charge and 18 months’ imprisonment for the breach of deportation order.  The sentences were reduced to 14 months and 12 months for the pleas of guilty.

3.The court considered totality and ordered that the sentences overlap by 6 months.  The total sentence was 20 months’ imprisonment for two charges.

4.The Appellant appealed against the sentence imposed for the trafficking charge only.

5.The trafficking charge related to 512.49 grammes of cannabis resin which, at the time the Appellant was apprehended, was contained in 53 plastic packets.  A life deportation order was in force against the Appellant on the date of the offence.

6.The Appellant had one previous conviction for trafficking in dangerous drugs committed in 1992; the drug in that case was also cannabis.  The case was dealt with in the Magistracy and attracted a sentence, on 26 May 1992, of 12 months’ imprisonment. 

7.The perfected ground of appeal on Charge 1 only, was that 21 months as the starting point for a charge of trafficking in cannabis resin, was in excess of the tariff sentence for that nature and quantity of dangerous drug and in all the circumstances of the case was manifestly excessive.

8.Counsel referred to AG v Tuen Shui Ming & Anor [1995]2 HKL 798 which revised tariff sentences for trafficking in cannabis, in particular cannabis resin.  The tariff band within which this amount fell, is that “under 2,000 grammes – up to 16 months”.

9.In assessing the starting point for sentence, the Magistrate noted that Charge 1, the trafficking charge, was a repeat offence and was of the view that because it was committed while the Appellant was in breach of a deportation order any potential mitigation arising from the lapse of time between the two offences was lost.

10.The Magistrate noted that for a quantity under 2,000 grammes a term of up to 16 months after trial, or approximately 10½ months on a plea, was appropriate, assuming a clear record.

11.He reminded himself that a tariff was not to be considered a strait jacket and that the sentencer should weigh all the facts of the case.  He stated:

“Plainly, repetition of an offence like this is a substantial aggravation, as is the possession of the drugs, ready packed for sale, in Tsim Sha Tsui with its high concentration of bars and nightclubs where such drugs are commonly used and where customers would be readily available.

I judged that in all the circumstances of this case, the proper starting point for charge 1 was 21 months.  The defendant was entitled to a one-third discount for his plea of guilty, hence the 14 months sentence imposed.”

He then dealt with the deportation order sentence and, referring to the principle of totality, continued:

“The defendant purports to appeal against the sentence for trafficking only.  Even if he were entitled to so limit his appeal, the actual sentence I imposed represents what I judged to be the proper overall term.”

12.Mr Surman for the Appellant submitted, in my view correctly, that although Tuen Shui Ming is silent as to whether the tariff is after trial or not, the court must have intended the tariffs therein to be after trial. 

13.Accordingly, the maximum sentence for trafficking in less than 2,000 grammes was 16 months’ imprisonment after trial.  As the Appellant had only one quarter of that quantity the sentence imposed should have reflected that lesser quantity.

14.Although the Appellant had a criminal record there was nothing to suggest that any deterrent sentence ‘in personam’ was called for.  The Appellant’s previous offence occurred 12 years earlier and was his only conviction. 

15.Counsel submitted that although strictly speaking he was a recidivist, the Appellant did not have such a bad record that it should be an aggravating feature warranting a dramatic increase in the starting point of the sentence.  As a recidivist is someone who habitually relapses into crime Mr Surman’s submission might be regarded as unduly strict this being a second offence.  Counsel submitted further that the Magistrate’s approach to totality was correct. 

16.The Respondent conceded they could not claim, on the basis of his record, that the Appellant was an habitual offender, but submitted that the Magistrate’s approach to sentencing was correct and should not be interfered with.

17.Although the sentence for an offence committed 12 years after the first might merit some increase it does not warrant the maximum recommended in that band.  The amount seized was a little over one quarter.  The fact it was wrapped for sale can be taken into account, but there is nothing extraordinary about the state of the drug that would merit a greatly enhanced sentence.

18.Accordingly, I allow the appeal to the extent of taking a starting point of 12 months for the first charge and reducing that to 8 months for the plea of guilty.

19.Although he is not appealing the term of the sentence for the breach of deportation order I am of the view that it falls to the court to look again at totality in light of the altered sentence on Charge 1.

20.As a matter of principle the sentence for a breach of deportation order should be wholly consecutive to the sentence for any other offence committed during the period of the breach.  However, in view of the Magistrate’s concern with totality, I order that 6 months of the sentence on Charge 1 run consecutively to the 12 months’ sentence for the breach of deportation order.  The total sentence for both charges is 18 months’ imprisonment.

Miss Micky Fung, GC of Department of Justice, for the Respondent

Mr Giles Surman, instructed by Director of Legal Aid, for the Appellant