HKSAR v. Cheung Kwok Fai

CACC 157/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 157 OF 2008

(ON APPEAL FROM HCCC 255 OF 2007)

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BETWEEN

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Before: Hon Stuart-Moore VP and McMahon J in Court

Date of Hearing: 12 December 2008

Date of Judgment: 12 December 2008

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.The applicant was convicted on his own plea before Saw J of an offence of trafficking in 2.96 grammes of cocaine (“the 1^st count”) and a further offence of trafficking in an assortment of drugs comprising 21.61 grammes of cocaine, 13.24 grammes of “ice”, 111.36 grammes of ketamine, 56.41 grammes of herbal cannabis, 0.02 grammes of ecstasy and 0.3 grammes of nimetazepam (“the 2^nd count”).  The judge sentenced the applicant to 6 months’ imprisonment in respect of the 1^st count and to 6 years 8 months’ imprisonment in respect of the 2^nd count.  Both sentences were ordered to be served concurrently resulting in a total sentence of 6 years 8 months’ imprisonment.  The unrepresented applicant now seeks leave to appeal his sentence on the ground that it is too severe.

2.The facts of the case were that the applicant was seen leaving premises which were under police observation in Tseung Kwan O.  He was intercepted, searched and the drugs the subject of the 1^st count were found in his clothing in a number of plastic bags.  The applicant was then taken back to the premises and inside those premises police found the drugs particularised in the 2^nd count.  When arrested he confirmed the drugs found in his clothing and in the premises were his.

3.The approach taken by the judge was to justifiably ignore the small amounts of ecstasy and nimetazepam, and sentence only on the basis of the cocaine, “ice”, ketamine and herbal cannabis found.

4.He then adopted a “global” starting point for the totality of drugs the subject of both counts, of 10 years’ imprisonment.  That was reduced by one-third to reflect the only mitigation available to the applicant, namely his plea, which arrived at a final sentence of 6 years 8 months’ imprisonment.

5.The judge then allocated sentences of 6 months’ imprisonment to the 1^st count, having adopted a notional starting point of 9 months for that count, and 6 years 8 months’ imprisonment to the 2^nd count, ordering both sentences to run concurrently to reflect the global 6 years 8 months sentence he had arrived at.

6.With respect that was, in principle, the wrong approach, though as will be seen it nevertheless arrived at the correct sentence.  It has been said on a number of occasions by this court that the proper approach when imposing sentence on a defendant for a number of offences is as follows.  Firstly, a starting point of sentence is determined for each offence.  From that starting point an appropriate discount is allowed for any mitigation to be taken into account.  Once a sentence has by that means been arrived at in respect of each offence, the final step for the sentencing court is to consider the proper totality of sentence and if necessary to order that all or part of the sentences imposed be served concurrently to reflect that totality : see R. v. Chen Yueh Ling, CACC464/1996; HKSAR v. Wong Kam Tat [2002] 2 HKC 677; HKSAR v. Kwok Shiu To, William [2006] 2 HKC 421.

7.Nevertheless the important consideration is the totality of sentence and no complaint can be made of the total sentence imposed by the judge for the following reasons : the offence the subject of the 1^st count warranted a starting point of 2 years’ imprisonment on the basis of the guidelines set out in R. v. Lau Tak Ming, [1990] 2 HKLR 370, rather than the 9 months allocated by the judge, that starting point being reduced to 16 months’ imprisonment for the applicant’s plea.  For the offence the subject of the 2^nd count, the judge was right to adopt the “combined” approach suggested by Mayo JA in HKSAR v. Yip Pik Kwai [1999] 3 HKLRD 42 as approved in HKSAR v. Yip Wai Yin [2004] 3 HKC 367, though as we say the quantity of cocaine the subject of the 1^st count should not have been included.  Taking into account the quantities of the two most serious drugs contained in the 2^nd count, that is cocaine and “ice”, and bearing in mind the significant quantities of ketamine and herbal cannabis, a starting point of 9 years’ imprisonment was appropriate, that then being reduced on the basis of the applicant’s plea to 6 years’ imprisonment.  In our view having regard to the totality of sentence, 8 months of the sentence imposed in respect of the offence the subject of the 1^st count should be served consecutively to the sentence imposed in respect of the 2^nd count.  That results in a sentence of 6 years 8 months’ imprisonment, which is the same sentence imposed by the judge.

8.The application is dismissed.

Ms Virginia Lau, SPP of the Department of Justice, for the Respondent

The Applicant, in person