HKSAR v. Poon Ching Yu

[English Translation]

CACC 469/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Before: Hon Chan CJHC, Leong and Yeung JJ

Date of Hearing: 20November 1997

Date of Judgment: 20November 1997

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JUDGMENT

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Hon Chan CJHC (giving the judgment of the Court):

1. The applicant pleaded guilty in the District Court to one count of trafficking in dangerous drugs and was sentenced to 4½ years’ imprisonment.  He had previously been sentenced to 5 years’ imprisonment in relation to another offence of trafficking in dangerous drugs.  The judge ordered that the two sentences were to run consecutively, with the result that the applicant is subject to a total term of 9½ years.  He now applies for leave to appeal against sentence.

2. The present offence took place on 18 March 1997.  The applicant was intercepted at the lift lobby on the 10^th floor of one of the blocks in Tai Hang Tung Estate by police officers who were waiting in ambush.  A search was conducted and 9 packets of dangerous drugs were found on his person.  One of the packets contained 10 smaller packets, and each of the remaining 8 packets contained 23 to 41 smaller packets of dangerous drugs, making a total of over 150 smaller packets.  The total quantity of the drugs was 58.71 grams, of which 31.02 grams comprised heroin base.  The applicant was involved in another case of trafficking in dangerous drugs on 22January 1997, or two months prior to the present offence.  On that occasion he had in his possession about 69 small packets of a mixture weighing 19.13 grams in total, of which 13.85 grams comprised heroin base.  In other words, the present offence was committed by the applicant while he was remanded on bail pending trial of the previous offence.

3. In passing sentence, the Deputy Judge adopted a starting point of 6½ years and, taking into account the applicant’s guilty plea, the Judge reduced the term to 4½ years.  Since the present offence and the previous offence were committed at different times, the Judge ordered that the two sentences were to run consecutively.

4. In light of the guideline laid down by the Court of Appeal in the case of Lau Tak Ming, we are of the view that the starting point of 6½ years in this case was an appropriate one.  The Judge also correctly gave a discount of 2 years on account of the applicant’s guilty plea, so we see nothing improper with the net sentence of 4½ years.  However, the present offence and the previous one were committed at different times and in different locations, and the applicant trafficked in even more drugs while the trial for the previous offence was yet to take place.  On the facts, the quantity of the drugs involved on this occasion was more than 2½ times that on the previous occasion, and the number of small packets involved on this occasion was twice the number involved in the previous case.  In view of these factors, a consecutive sentence was necessary.

5. Nevertheless, counsel for the prosecution conceded, in our view very fairly and commendably, that, having regard to the totality principle, the total sentence of 9½ years might not be appropriate.  We take the view that the judge had not accorded sufficient weight to the totality principle.  The total quantity of heroin involved in the two cases was 44.8 grams.  Had it been a single case, the usual sentence would have been 7½ years.  In our view, however, it is wrong in principle to calculate the sentence this way.  First, the two offences in question were committed on different dates and therefore could not be treated as one case.  Second, there was an aggravating factor in that the applicant committed the present offence while he was on bail.  Third, it has to be noted that the procedures adopted in the two cases were different.  In the previous case, the applicant was convicted after trial and was therefore not entitled to any discount in the sentence; whereas in this case he pleaded guilty, and was therefore entitled to the usual discount of one-third or 30%.  Taking into consideration all these aggravating and mitigating factors, we take the view that the total sentence should be between 7 and 7½ years.  In light of the fact that, the applicant, as we have mentioned, trafficked in even more drugs on this occasion, we consider a total sentence of 7½ years to be more appropriate.

6. We grant leave to the applicant to appeal against sentence and allow the appeal.  Of the 4½-year term imposed in the present case, 2 years will run concurrently with the 5-year sentence passed in the previous case, making a total sentence of 7½ years.

Mr. Eric Kwok, instructed by the Department of Legal Aid, for the applicant.

Mr. Harry Macleod, Deputy Director of Public Prosecutions and Mr. Robert Lee, Senior Government Counsel, for the respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor