The Queen v. Lai Ping-kwan

CACC001178/1982

BETWEEN

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Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A.

Date: 17th May, 1983.

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JUDGMENT

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McMullin, V. -P.:

1. The applicant pleaded guilty in the District court to a dangerous drugs purpose of charge of possession of dangerous for the unlawful trafficking. That offence occurred on the 27th of  March 1982 at Block 2  of the Yuen Long Estate. He was brought before the District Court for that offence. The details were that he had been found in possession of a number of drinking straws containing a mixture of drugs involving 1.85 grammes of malts of salts of morphine. The total quantity of the mixture in 71 cut-up segments of drinking straws being 6.89 grammes. He was granted bail by the District Court and was not brought before that court again until the 16th of November upon which date he pleaded guilty and received a sentence of 3½years.

2. Between the 27th of March and the date of his District Court sentence, while he was on bail, he committed another dangerous drugs offence. That offence occurred on the 24th of August, 1982 when he was found at the stairs in the concourse of Block 1, Yuen Long Estate, New Territories, on the first floor. He was found in possession of some 10 packets which he had in his mouth and which upon later examination were seen to contain a total quantity of 1.2 grammes of a mixture containing salts of esters of morphine.

3. He was again granted bail by the Magistrate's Court on the 25th of August and on the 28th of August he pleaded not guilty and the hearing date was fixed for the 24th of November and bail was extended to that date. At some point however, before that date, he must have been placed in custody again because on the 24th he was not able to turn up in the Magistrate's Court being on remand in Laichikok for the District Court offence. On the 29th of November, before the Fanling Magistrate, he pleaded guilty and was remanded for fourteen days for a Drug Addiction Treatment Centre report. On the following day, the 30th, the District Judge dealt with him for the District Court offence and, as we understand it, the magistrate's 'court proceedings were not brought to his attention on that occasion. He received a sentence of 2½years from the Fanling magistrate on the 13th of December after the receipt by the magistrate of the Drug Addiction Treatment report.   The magistrate was then aware that the defendant had received a 3½years' sentence but he ordered that his 2½years' sentence should run consecutively to that imposed by the District Court.

4. Subsequently there was an appeal from the magistrate's decision and on the 25th of January, Mr. Justice Addison  considered the appeal. He took the view that the totality was excessive and he reduced the sentence by 6 months.

5. We do not know what administrative difficulties lay in the way of the prosecuting authorities which resulted in these two cases being dealt with not only in different courts but in courts on different levels of jurisdiction. We feel however that had both of the cases been dealt with at the same time in the District Court, then conformance to the sentencing principles established in Chan Chi-ming, it is unlikely that the defendant would have received sentences much in excess of four years. We are indebted to Mr. Sulan for the assistance he gave the Court in drawing our attention to the matters to which I have referred. We take into account the fact that the commission of another offence while the defendant was on bail is an aggravating factor and we can, of course, not in any way interfere with the magistrate's sentence which has already been dealt with upon appeal. We think however that the totality, now that we are dealing with the District Court sentence, is too great, and in order to reflect the pecularity of the situation, and notwithstanding that the District Court case involved a greater quantity of drugs, we think the proper course is to allow the application and the appeal and to order that the sentence of 3½years be set aside. For it we substitute a sentence of 2½ years only, with the result that the totality will be 4½years.

Representation:

Appellant in persona.

R. Pritchard, for Respondent /Crown.