R. v. Lam Yick-fai

CACC000574/1995

IN THE COURT OF APPEAL

1995, No.574

(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. & P. Chan, J.

Date of hearing: 21 November 1995

Date of judgment: 21 November 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant was found guilty after trial before District Judge Jackson on two charges, one of possession of a dangerous drug and one of instrument fit and intended for the smoking of a dangerous drug. The possession charge alleged that he at his residence at Room 2001 Cheung Shun House in Fanling had in his possession 33.95 grammes of a mixture containing 13.86 grammes of salts of esters of morphine. The second charge alleged that at the same place he had instruments fit and intended for the smoking of dangerous drugs and it there set out what they were. They included banknotes with traces of dangerous drug, burned tinfoil, a cigarette box and a second lot of banknotes. Why the rolls of banknotes were stated to be instruments fit and intended for the smoking of dangerous drugs was not clear. However they were detailed in the charges. Clearly the cigarette box and the tinfoil were such instruments. The applicant was sentence to 2½ years' on the first count, 6 months on the second count and the sentences were ordered to be consecutive. He now appeals against those sentences.

2. The trial judge at the time of sentencing said:

"Given the nature of these offences, what I am told about this defendant in the reports before me and the amount of dangerous drugs concerned, it is my view that the only appropriate sentence in his case is one of imprisonment."

He then went on:

"Taking into account the 1st defendant's age and the fact that he has not previously served a prison sentence, he will go to prison for a term of 2 years and 6 months in respect of the 1st count, and for 6 months in respect of the 2nd count, such sentences to be served consecutively; in other words he will go to prison for 3 years in total."

3. It is argued by Mr. Wilson Chan, who appears for him today, that the two offences should have been treated as one transaction and that the appropriate sentence for such a transaction is about 2½ years. He relies when so saying upon the authority of the case of The Queen v. Chiu Hung-wong (1994) 1 H.K.C.L.R. 184. We are satisfied that there is considerable force in this submission and, indeed, Mr. Saw, very fairly, does not seek to argue otherwise. We consider that the two charges should have been dealt with as one transaction and the sentences should have been concurrent.

4. We allow the application, treat the hearing of the application as the hearing of the appeal, allow the appeal and order that the sentences be served concurrently.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. Wilson Chan assigned by D.L.A. for the Applicant.