HKSAR v. Cheng Kam Fat

CACC000500/1997

IN THE COURT OF APPEAL

1997, No. 500
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Wong, J.

Date of hearing: 27 November 1997

Date of delivery of judgment: 27 November 1997

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J U D G M E N T

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1. In the early hours of 11 December last year, police officers intercepted the applicant and another man when they alighted from a taxi in Aberdeen, Hong Kong. In the course of the interception the applicant punched one of the officers on his abdomen twice. He was subsequently subdued after a brief chase and some struggle.

2. A body search was conducted on the spot and two plastic bags of dangerous drugs were found inside his trousers pocket. This is the subject matter of the 1st charge. He was arrested for trafficking in a dangerous drug and brought back to Aberdeen Police Station. A subsequent body search was conducted at the police station and this resulted in finding a small metal box containing dangerous drug which was concealed in between the applicant's abdomen and underpants. This forms the subject matter of the 2nd charge. Under caution, the applicant admitted that the "Ice" in the plastic bags was bought by himself and the other man for 'making money' while the "Ice" found in the police station was for his own consumption.

3. Upon analysis by the Government Chemist, the dangerous drug was found to be 25.96 grammes of a crystalline solid containing 24.84 grammes of what is commonly known as "Ice" and 1.47 grammes of a crystalline solid containing 1.43 grammes of "Ice" respectively..

4. The applicant pleaded guilty before Saied J. and was sentenced to 6½ years in respect of the 1st charge and 2 years in respect of the 2nd charge. The sentences were to be served concurrently. He seeks leave to appeal against these sentences.

5. In passing sentence, the judge had in mind the guideline laid down in R v Ching Kwok-hung (1991) HKLR 2, p.125 and took a starting point of 8 years for the 1st charge. For the 2nd charge, he took a starting point of 2 years. Mr. Szeto, who also appeared in the court below urged the judge to proceed on a mathematical calculation and this would arrive at a starting point of 92 months instead of 96 months. The judge considered the submission but concluded that he was not bound to adopt a mathematical approach. Mr.Szeto repeats the submission before us. He also makes two further complaints. First, the starting point adopted for the 2nd charge is also excessive. Second, the discount of 1 1/2 year failed to take sufficient account of the plea of guilty which was tendered by the applicant in the early opportunity at the committal stage.

6. In relation to the starting point of 8 years for the 1st charge, this Court has said on many occasions that it is inappropriate to adhere to strict mathematical calculations when fixing a starting point. With regard to the starting point for the 2nd charge, the correct approach would have been to add the two quantities of the dangerous drug together and then give a sentence appropriate to the total quantity of the two lots of the drugs. This would have given a totality of 8 years. As the sentence imposed on the 2nd charge was ordered to run concurrently, it is not necessary for us to interfere with it.

7. There remains the question of the discount. We are satisfied that the discount of 1½ year given by the judge is not adequate to reflect the plea of guilty which was tendered at the early stage of the proceedings. We must also take into account that the drug in the 2nd charge was for his own consumption and the sentence for that part of the dangerous drug must be lighter. Treating the application for leave as the hearing of the appeal, we allow the appeal and reduce the sentence on the 1st charge to 5 years to be served concurrently with the sentence on the 2nd charge. The appeal is allowed to this extent.

Representation:

Mr. A.A. Bruce, S.C. and Mr. Martin Hui, G.C. for D.P.P.

Mr. Patrick Szeto instructed by Messrs. K.B. Chau & Co. for the applicant.