Read the full judgment text of HCMA 000571/2005 on BabelCite. This High Court CFI judgment was delivered on 30 September 2005 before 張慧玲.
Criminal law – dangerous drugs – trafficking of herbal cannabis – possession of dangerous drugs – sentence appeal – starting point – sentencing discount – totality principle – concurrent vs consecutive sentences – guilty plea discount – Herbal cannabis of 3.03 kilograms was found in a car driven by the appellant, and a further 1.94 grams of herbal cannabis together with two tablets containing nimetazepam were found at his home. The appellant, aged 29 with four prior possession convictions but no prior trafficking conviction, pleaded guilty to one count of trafficking dangerous drugs and one count of possession of dangerous drugs. Whether the magistrate erred in adopting 18 months as the starting point for the trafficking offence – held: the appropriate starting point was 15 months; the magistrate's reliance on the worsening drug problem to exceed the guideline range amounted to double punishment. Whether the trafficking and possession sentences should run consecutively – held: they should run concurrently in light of the totality principle and the fact that the additional drugs would not have affected the starting point had they been charged as a single trafficking offence. The Court of Appeal's guidance in Attorney General v Tuen Shui Ming [1995] 2 HKCLR 129 applies to herbal cannabis; absent very large quantities, a discount of up to one year may be applied to the sentence that would otherwise have been imposed for an equivalent amount of cannabis resin. Starting point of 24 months for 3.03kg of cannabis resin, with a 9-month discount, yielded 15 months; one-third reduction for guilty plea produced 10 months. The 1-month possession sentence was ordered to run concurrently, giving a total of 10 months.
Legal issues: 量刑起點是否恰當 · 刑期應否分期執行
Outcome: Appeal against sentence partly allowed. Sentence for trafficking reduced from 12 months to 10 months; possession sentence of 1 month ordered to run concurrently with the trafficking sentence, yielding a total sentence of 10 months.
Cited by 2 cases