HKSAR v. Lo Wai Fai

HCMA 123/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 123 OF 2010

(ON APPEAL FROM KCCC 6338/2010)

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BETWEEN

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Before: Hon  Wright J

Date of Hearing and Judgment: 28 April 2010

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J U D G M E N T

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1.The appellant was convicted on his own pleas of guilty to two offences: the first related to trafficking in a single packet containing 0.08 grammes of heroin hydrochloride on 7 December 2009 in a street in Kowloon and the second to possession on 10 December 2009, three days later, of three packets containing, in aggregate, 0.30 grammes of heroin hydrochloride inside Lai Chi Kok Reception Centre. He was sentenced to undergo imprisonment for, respectively, 16 and 10 months. The sentences were ordered to be served wholly consecutively to one another, aggregating 26 months.

2.The offence on the 7 December was revealed by a police operation. A plainclothes police officer approached the appellant and purchased from him the packet of drugs referred to in that charge: the summary of facts agreed by the appellant revealed that he took the packet containing the drugs out of his mouth and handed it to the police officer. Another police officer "dashed out" from nearby and apprehended the appellant. He was then taken back to Sham Shui Po police station and remained in the custody of the police or correctional services until the time of the second offence.

3.The facts relating to the second offence show that he was taken to Lai Chi Kok Reception Centre on 8 December where he failed to disclose the presence of the remaining three packets in his body. He excreted those packets on 10 December. However, he did so on 10 December before he excreted the packets although by then he must have realized the inevitability of detection having been kept in an isolation ward.

4.The summary of facts also indicates that after excreting the three packets of drugs he was twice interviewed and on each occasion asserted that he had swallowed the packets at the time of his arrest. It is perhaps not without significance that in the second interview he also indicated that those packets were also intended for sale on the earlier occasion.

5.For my part, given that the appellant was in custody and, to a greater or lesser extent, under the immediate supervision of the police from the time of his arrest, I am prepared to accept that he did have the three packets in his mouth and did swallow them at the time of his arrest.

6.The grounds of appeal are three: the magistrate erred in directing that the sentences be served consecutively to one another; that the total starting point of 39 months is too high; and that the resulting sentence is manifestly excessive and/or wrong in principle. No issue is taken, and rightly so, with the individual sentences imposed.

7.My view is that the resulting sentence is not appropriate in the peculiar circumstances of this matter.

8.The magistrate rightly recognised that it is necessary to impose substantial sentences to deter persons from carrying dangerous drugs into custody. It is, theoretically at least, correct that the offences were separate and distinct offences which, in principle, would call for consecutive sentences. It is, however, necessary to apply to those principles the facts which gave rise to the conviction in respect of which sentence is to be imposed and to do so in such a manner that the resulting sentence is one which properly reflects the overall criminality of the offender’s conduct.

9.The facts of this matter are very different from the situation where a person on bail ingests drugs in expectation of forthcoming incarceration. It is self-evident that once the appellant swallowed the packets at the time of his first arrest a chain of events was set in motion over which he had little control. It is hardly speculative to say that, at that stage, there was no real reason why he would not anticipate being released on police bail and thus retrieve the packets: in the event he was remanded in custody. Thereafter the only real option open to him would have been to have made known, on 8 December, that he had already swallowed the packets: as serious as his failure to do so may be, in my judgment it does not justify an additional 10 months imprisonment which is the practical effect of this sentence.

10.It has been suggested that it would have been open to the prosecution to have charged the appellant with having traffic in the entire quantity of drugs on 7 December. That is correct. It does not follow that the further suggestion that this would have made no difference to the starting point on Charge 1 is also correct. Even though that course was open to the prosecution it was not one which it was bound to follow: there was nothing oppressive or inappropriate in the charges.

11.I take the view that the sentence on Charge 2 should have been ordered to be served partly consecutively to that on Charge 1 thus recognising the individual nature of the two offences as well as providing some deterrence against taking drugs into custody.

12.In the result the appeal against sentence is allowed to the extent that the individual sentences are confirmed but 2 months of the sentence on Charge 2 are to be served consecutively to that on Charge 1, the aggregate sentence thus being 18 months in prison.

13.I emphasize that this decision is based, as are all sentences, on the specific facts of this case.

Ms Hermina Ng, Public Prosecutor, Department of Justice, for the Respondent.

Mr Bernard Chung, instructed by Messrs. Au, Thong & Tsang for the Appellant.