HKSAR v. Eriksson Rickard Wilhelm
Read the full judgment text of CACC 454/2002 on BabelCite. This Court of Appeal judgment was delivered on 23 April 2003 before Yeung JA, Jackson J.
Criminal law – sentencing – trafficking in dangerous drug – possession of dangerous drug – possession of apparatus for inhaling dangerous drug – guilty plea – assistance to authorities – totality principle – concurrent sentences – appeal against sentence. The applicant pleaded guilty in the District Court to three charges arising from police breaking into premises at Room 401, Ivy House, Wyndham Street on 8 February 2002, where the applicant threw a metal box containing 7.97 grammes of 'ice' from the window and a small quantity of cannabis resin, traces of cocaine, and inhaling apparatus were found in his room. The judge adopted starting points of 4½ years, 3 months and 12 months for the 1st, 2nd and 3rd charges, increased the overall starting point to 5 years on the totality principle, applied a one-third discount for the guilty plea, and a further 4-month discount for assistance to the police and ICAC, imposing concurrent sentences of 3 years, 2 months and 8 months. Whether sentences on the 2nd and 3rd charges should be concurrent with the 1st charge – yes, as the very small amount of cannabis and cocaine traces barely affected the gravity of the case set against the larger trafficking quantity, following HKSAR v Lee Yuen-ping, Maggie, and the judge in effect made them partially consecutive by raising the starting point to 5 years. Whether the 8-month sentence on the 3rd charge was excessive – yes, 6 months was more appropriate. Whether the 4-month further discount for assistance was adequate – no, an overall discount of about 45% for guilty plea and considerable assistance to authorities was appropriate, following HKSAR v Ng Shek-yu for an accused who is not a supergrass. The applicant provided information to police leading to arrest of 9 individuals in 4 cases (7 convicted) and to ICAC leading to arrest of 3 persons (1 convicted) for conspiracy to traffic and perjury, with no serious hardship to him or his family. Appeal allowed; total sentence reduced from 3 years to 30 months' imprisonment, with all three charges to run concurrently.
Legal issues: Whether sentences on 2nd and 3rd charges should be concurrent with the 1st charge · Whether the 8-month sentence on the 3rd charge (possession of apparatus) was excessive · Whether the discount for guilty plea and assistance to authorities was adequate
Outcome: Leave to appeal granted and treated as the appeal proper; appeal allowed; sentences on the 1st and 3rd charges reduced to 30 months and 6 months respectively, to run concurrently with the 2-month sentence on the 2nd charge. Total sentence reduced from 3 years to 30 months' imprisonment.
Cited by 20 cases · Cites 3 cases
|
CACC000454/2002 CACC 454/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 454. OF 2002 (ON APPEAL FROM DCCC NO. 375 OF 2002) ________________
________________ Coram: Hon Yeung JA & Jackson J in Court Date of Hearing: 23 April 2003 Date of Judgment: 23 April 2003 __________________ J U D G M E N T __________________ Hon Yeung JA (giving judgment of the Court): Background 1.The applicant, Eriksson Rickard Wilhelm appeared before Judge Poon in the District Court on an indictment consisting of the 1st charge of trafficking in a dangerous drug, the 2nd charge of possession of dangerous drugs and the 3rd charge of possession of apparatus fit and intended for inhaling a dangerous drug. 2.The applicant pleaded guilty to all three charges and was sentenced to the respective terms of 3 years, 2 months and 8 months to run concurrently. The applicant now seeks leave to appeal against these sentences. The Facts 3.The facts as admitted by the applicant are simple. On 8 February 2002, police offices broke into premises at Room 401, Ivy House in Wyndham Street. There were two rooms inside and the applicant was in one of them. 4.The applicant threw a metal box from the window of the room. The metal box contained 4 plastic bags with a total of 8.11 grammes of a crystalline solid containing 7.97 grammes of 'ice' (the subject matter of the 1st charge). 5.The small quantity of cannabis resin and traces of cocaine (the subject matter of the 2nd charge) as well as the apparatus (the subject matter of the 3rd charge) were found inside the applicant's room. The applicant admitted that the dangerous drugs and the apparatus belonged to him and he also admitted to have trafficked in a dangerous drug. The Judge's Approach 6.The judge adopted the respective starting points of 4 1/2 years, 3 months and 12 months for the 1st, 2nd and 3rd charges and reduced them by one-third on account of the guilty plea. 7.The judge took the view that on totality principle, an overall starting point should be 5 years. With the one-third discount for the guilty plea, the total sentence was reduced to 40 months. The judge allowed a further discount of 4 months for the assistance that the applicant gave to the police and the ICAC. The Judge then imposed the sentence as she did, namely concurrent terms of 3 years, 2 months and 8 months. 8.Apparently the applicant had assisted the police and the ICAC by informing on drug traffickers. According to Mr. Madigan, counsel for the respondent, the assistance given by the applicant was considerable. He gave information to the police that led to the arrest of 9 individuals in 4 different cases. Of the 9 arrested persons, 7 were convicted of various charges and 2 were acquitted. The assistance to the ICAC resulted in the arrest of 3 persons who were arraigned with conspiracy to traffic in dangerous drugs and perjury. One of them was convicted. Grounds of Appeal 9.Mr. Surman, on behalf of the applicant complains that the starting points for the 2nd and 3rd charges are too high. He agrees with the starting point of 4 1/2 years for the 1st charge but suggests that sentences on the 2nd and 3rd charges should be concurrent sentences. Adopting the approach of the judge, with the one-third and then the 4 months reduction, the total sentence should be 32 months' imprisonment. Mr. Surman also suggests that the 4 months reduction for the assistance to the police and the ICAC is inadequate. 10.Having adopted a starting point of 4 1/2 years for the 1st charge and then increased it to 5 years on totality principle, the judge in effect had ordered the sentences on the 2nd and 3rd charges to be partially consecutive. 11.Mr. Madigan, for the respondent fairly concedes that the sentences on the 2nd and 3rd charges should be concurrent sentences and the reduction of 4 months is not commensurate with the assistance rendered by the applicant to the police and the ICAC. 12.We agree that the very small amount of cannabis and cocaine traces possessed by the applicant barely affects the gravity of the case when this is set against the far larger quantity involved in the trafficking charge. (see HKSAR v Wong Kam-wo [2001] 2 HKC 647 13.In HKSAR v Lee Yuen-ping, Maggie CACC 242 of 2000 (unreported), a case on sentence for possession of apparatus and for trafficking dangerous drugs, we made the following comment:
14.The assistance given by the applicant to the police and the ICAC is considerable as pointed out by Mr. Madigan. In a case where an accused pleads guilty and provides information to the authority leading to the arrest of criminals and if the accused also gives evidence against such criminals, a discount of up 50% is justified. 15.In HKSAR v Ng Shek-yu CACC 178 of 2000 (unreported), the Court of Appeal confirmed a 40% to 45% discount in sentence for an accused who is not a supergrass and had provided assistance to the authorities without giving evidence against other offenders. The discount can be adjusted upward if the accused suffers any serious hardship by reason of the assistance to the authorities. 16.There is no suggestion that the applicant and/or his family members had suffered or would suffer and serious hardship because of the information he provided to the police and the ICAC. In the circumstances, we are persuaded that the applicant should be given about 45% discount for his guilty pleas and the considerable assistance that he had given to the relevant authorities. 17.Not that it is of any significance, but the sentence of 8 months on the 3rd charge is also excessive. A more appropriate sentence should be 6 months. Conclusion 18.To give effect to our decision, we make the following orders:
Representation: Mr P K Madigan of Department of Justice for the Respondent Mr Giles Surman assigned by The Director of Legal Aid for the Applicant. |
Cases cited in this judgment