HKSAR v. or Wai Tong
Read the full judgment text of CACC 250/2009 on BabelCite. This Court of Appeal judgment was delivered on 3 December 2009 before Ma CJHC and Stock VP.
Criminal law – sentencing – trafficking in dangerous drugs – simple possession of dangerous drugs – methamphetamine hydrochloride (ice) – totality principle – consecutive versus concurrent sentences – whether small additional quantity of drugs justifies a consecutive element – appeal against sentence – Court of Appeal substituting concurrent sentences – Applicant arrested in Tsimshatsui by Customs & Excise Officers with 135.21 grammes of crystalline solid containing 131.17 grammes of ice in a shopping bag and a further 2.65 grammes of ice plus a 4mg diazepam tablet in a car – 16 previous convictions including two for drug trafficking – plea of guilty to one count of trafficking and one count of simple possession – whether the sentencing judge erred in ordering 6 months of the 12-month possession sentence to run consecutively to the 7 years 4 months imposed for trafficking – whether the totality principle required wholly concurrent sentences – held that where the additional drugs under the possession charge (2.63 grammes of ice and a negligible amount of diazepam) would not have altered the 11-year starting point for the trafficking charge, the consecutive element produced a longer overall sentence than a single trafficking charge would have warranted – the court followed HKSAR v Ip Yuet Ho (葉粵豪) [2008] 6 HKC 35 in holding that the additional quantity could not justify a longer sentence simply because it was for personal consumption – sentences ordered to run wholly concurrently – appeal allowed – original sentence of 7 years 10 months substituted with 7 years 4 months' imprisonment – starting point 11 years for trafficking, reduced by one-third for guilty plea to 7 years 4 months; possession starting point 18 months reduced to 12 months for guilty plea, all concurrent.
Legal issues: Whether part of sentence for simple possession of dangerous drugs should run consecutively to sentence for trafficking
Outcome: Leave to appeal granted; appeal allowed; original sentence of 7 years 10 months' imprisonment substituted with a sentence of 7 years 4 months' imprisonment (sentences on both counts to be served wholly concurrently).
Cited by 13 cases · Cites 1 case
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CACC 250/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 250 OF 2009 (ON APPEAL FROM HCCC NO. 168 OF 2009) _________________________ BETWEEN
_________________________ Before : Hon Ma CJHC and Stock VP in Court Date of Hearing : 3 December 2009 Date of Judgment : 3 December 2009 ______________ J U D G M E N T ______________ Hon Ma CJHC (giving the judgment of the Court) : 1.On 14 July 2009, the Applicant pleaded guilty to one charge of trafficking in dangerous drugs (135.21 grammes of a crystalline solid containing 131.17 grammes of methamphetamine hydrochloride, that is, ice) and one charge of simple possession of dangerous drugs (being 2.65 grammes of a crystalline solid containing 2.63 grammes of ice and one tablet containing 4 milligrammes of diazepam). On 6 January 2009, the Applicant was arrested by Customs & Excise Officers who were conducting anti‑narcotics operations in Tsimshatsui. The drugs (the subject matter of the trafficking charge) were found in a shopping bag carried by the Applicant, while the other drugs (the subject matter of the possession charge) were found in a car, the keys to which were found on the Applicant. 2.The same day, Deputy High Court Judge Toh sentenced the Applicant as follows : ‑
In all, therefore, the Applicant was sentenced to a term of 7 years 10 months’ imprisonment. 3.The learned Judge took into account the Applicant’s previous record (he has 16 previous convictions, including two for trafficking in dangerous drugs). 4.The Applicant makes no complaint about the individual sentences that were passed for the two offences. The only ground of appeal is that the Judge erred in ordering that a part of the sentence for the possession charge be served consecutively to that for the trafficking charge. 5.Although logically the two offences can be said to be separate, we are of the view that, from the point of view of totality, it was wrong in the present case to so treat them. The amount of ice in the possession charge was 2.63 grammes. When this amount is added to the quantity of ice under the trafficking charge, there a total of 133.8 grammes. If the Applicant had been charged with trafficking in dangerous drugs in this total amount, the starting point of his sentence would then have been no higher than that adopted by the Deputy Judge in the present case, namely, 11 years’ imprisonment. The amount of the other drugs found in the Applicant’s possession (namely, one tablet containing 4 milligrammes of diazepam) was negligible. In these circumstances, it would not be right to pass an overall sentence greater than that which would have been passed had all the drugs been the subject of a single trafficking charge. 6.For this reason, we agree with Mr Boyton (and also Mr W T Chiu for the Respondent) that the Deputy Judge ought not to have ordered a part of the sentence for the possession charge to be served consecutively to the sentence for the trafficking charge. The two sentences ought to have been ordered to be served wholly concurrently. A similar approach was adopted by this court in HKSAR v Ip Yuet Ho (葉粵豪) [2008] 6 HKC 35 where, in relation to charges of trafficking and possession of cocaine and ice, Yeung JA said this at 40H‑I (paragraph 34) : ‑
7.Accordingly, we grant leave to the Applicant to appeal against sentence and, treating this hearing as the appeal proper, we allow the appeal and substitute a sentence of 7 years 4 months for the original sentence of 7 years 10 months.
Mr David Rex Boyton, instructed by Messrs M C A Lai & Co for the Applicant Mr W T Chiu of the Department of Justice for the Respondent |
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