HKSAR v. Tam Siu Hong

HCMA785/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 785 OF 2008

(ON APPEAL FROM KCCC 2501 OF 2008)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 6 November 2008

Date of Judgment : 17 November 2008

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J U D G M E N T

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1.The appellant pleaded guilty to two offences of trafficking in dangerous drugs, before Mr Thomas in Kowloon City Magistracy.  The first offence involved 1.09 grammes of heroin, the second 4.92 grammes of heroin and 0.7 grammes of midazolam.  He was sentenced to 16 months’ imprisonment in respect of each offence, those sentences to run consecutively.  That arrived at a totality of 32 months’ imprisonment.  Additionally, a suspended sentence of two months’ imprisonment, during the term of which the present offences were committed, was activated.  That activated sentence was also ordered to run consecutively and in the result the appellant was sentenced to a totality of 34 months’ imprisonment.  He appeals the totality of sentence as being too severe. 

2.The facts of the trafficking offences were that on 1 April 2008, the appellant was stopped and searched by police officers.  A plastic bag containing the drugs, the subject of the 1^st offence was found in his clothing.  The appellant was arrested and subsequently released on police bail.

3.On 25 April 2008, whilst the appellant was on bail, he was again stopped by a different police patrol who searched him and found in his clothing a plastic bag containing the drugs the subject of the second offence.

4.On 4 September 2006, the appellant had been sentenced to two months’ imprisonment suspended for 24 months in respect of two petty theft offences.  The term of suspension therefore had five months to run at the time of the first trafficking offence.

5.Mr Richard Wong of counsel advances a sole ground of appeal on behalf of the appellant.  It is :

“The learned Magistrate failed to take sufficient consideration of the totality principle in sentencing, thereby occasioning the total sentence of 34 months’ imprisonment for the two offences of trafficking and the activated suspended sentence to be manifestly excessive.”

Mr Wong accepts that the sentences imposed in respect of the trafficking offences were individually not able to be criticized, the magistrate having taken starting points at the lower end of the first band in Lau Tak Ming [1990] 2 HKLR 370 at 387, and not having increased his sentence for the second offence because of the relatively small amount of midazolam included in that offence.  He accepts also that the two sentences arrived at by the magistrate were in principle properly ordered to run consecutively given that the second of those offences was committed whilst the appellant was on bail for the first offence.

6.Similarly, he concedes that there was no breach of principle in ordering the activated suspended sentence for the earlier theft offences to run consecutively to each of the trafficking offences. 

7.Mr Wong does however rely on the principle expressed in HKSAR v. Bui Van Trung, HCMA596/2004 in attacking the totality of sentence at which the magistrate arrived.

8.In Bui Van Trung, the appellant had pleaded guilty and been convicted of two offences, landing and remaining in Hong Kong unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance and being in Hong Kong in contravention of a deportation order, contrary to section 43(1)(a) of the that Ordinance.  The appellant had in previous years been convicted of a number of similar offences and of more serious offences which the magistrate rightly considered greatly aggravated the offences before him.

9.He then imposed consecutive sentences of 18 months’ imprisonment in respect of each offence resulting in a totality of three years’ imprisonment.  That was a sentence at the maximum of the magistrate’s jurisdiction.  The appellant argued his sentences were too severe and in particular that because the magistrate had imposed sentences at the maximum of the court’s jurisdiction that he, the appellant, had received no benefit for his pleas of guilty, as, if he had pleaded not guilty and been convicted, he would have received no greater sentence.

10.In allowing his appeal and reducing the totality of sentence to 2 years 6 months’ imprisonment, Lunn J referred to the judgments of the Court of Appeal in HKSAR v. Lui Cho Hung, CACC216/2000 (unreported) and HKSAR v. Li Yan [1998] 4 HKC 12.  In the latter case, Mortimer VP was dealing with a similar circumstance where in the District Court a maximum sentence of seven years’ imprisonment had been imposed after the appellant had pleaded guilty to offences of robbery and unlawfully landing and remaining in Hong Kong.  Mortimer VP after considering various authorities said :

“…The principles which are to be elicited from these cases and the jurisdictional limit laid down in s. 82 of the District Court Ordinance (Cap. 336) are as follows:

(1) On any one occasion the District Court may not impose a greater sentence than seven years' imprisonment.

(2) Such a sentence may be consecutive to a sentence passed previously which is being served by the accused.

(3) In order to assess the correct sentence, it is permissible for the judge to adopt as a starting point, a total sentence of more than seven years if the offence or offences warrant such a sentence, but he may not impose a sentence of more than seven years.

(4) If the sentences are imposed after plea, the starting point may be more than seven years, but if the sentence after discount is seven years or more, the full seven years should not be imposed as this deprives the accused of any benefit for his plea of guilty.

(5) Therefore, in cases which merit a sentence of seven years or more after discount for plea, a further discount should be given. …”

and continued :

“The cases cited above demonstrate — and it is self-evident — that justice requires a further meaningful discount should be given from the maximum of seven years after plea in those cases which would attract seven years or more as the proper sentence which the court ought to impose.  This is to give the accused some benefit for his plea of guilty.”

and later :

“... In cases where the appropriate sentence to be imposed after discount is seven years or more, a meaningful discount from seven years should be given in order to give some benefit for the plea. The same applies if the appropriate sentence is so near seven years that the discount is not meaningful. As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than one year be so considered.”

11.The court went on to substitute a total sentence of 5 years 11 months for the 7-year sentence imposed by the District Court.  In Lui Cho Hung, the Court of Appeal, differently constituted, endorsed the comments in the judgment in Li Yan. 

12.The principle is clear.  A meaningful discount must be given below the maximum sentence able to be imposed by the sentencing court where there has been a plea of guilty.  While it may be that the present appellant (as with the appellant’s in the cases of Bui Van Trung, Li Yan and Lui Cho Hung) may be considered to have received an unwarranted windfall as a result of his prosecution having being brought in a court with a lower jurisdictional limit in sentencing than appropriate for his particular circumstances, the strength of the counter argument was well expressed by Lunn J in Bui Van Trung :

“The justice of the approach of the Court of Appeal in HKSAR v. Li Yan can be tested by reference to the facts in this appeal.  Were there two defendants of similar circumstances facing these two charges and the one pleaded guilty and the other stood his trial and was convicted would it be appropriate to impose the same sentence, namely three years’ imprisonment that being the maximum on each of the defendants?  One has only to pose the question to see the injustice.  The legitimate expectation of the defendant who had pleaded guilty to a discount for his plea of guilty would have been denied.”

13.In the present case, the question then is whether the totality of sentence imposed represented a sufficient discount from the maximum sentence able to be ordered by the magistrate.  In considering this, it should be borne in mind that the consecutive activated sentence of two months’ imprisonment imposed in respect of the theft offence is irrelevant.  That sentence has nothing to do with considerations relating to the sufficiency of the discount allowed for the appellant’s plea to the two trafficking offences.

14.In effect then the magistrate’s total sentence for the trafficking offences resulted in a discount of four months from his maximum jurisdiction of three years.  The magistrate did not consider whether, in the words of Mortimer VP, that represented “a meaningful discount” from the 3-year maximum sentence able to be imposed, and it is therefore a matter for this court.  In my judgment, it was not a sufficient discount and a reduction of at least six months should have been allowed, resulting in a total sentence for the two trafficking offences of 30 months’ imprisonment.

15.Accordingly, I order that two months of the sentence imposed in respect of the trafficking offences be served concurrently.  All other sentences and orders of the magistrate will remain.  That results in a totality of sentence, including the activated sentence, of 32 months’ imprisonment.

Mr Marco Li, SPP of Department of Justice, for the Respondent

Mr Richard Wong Tat Wah, assigned by Director of Legal Aid, for the Appellant