HKSAR v. BUTT MUHAMMAD GULZAR
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CACC 205/2019
[2020] HKCA 597
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 205 OF 2019
(ON APPEAL FROM DCCC 74/2019)
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| BETWEEN | ||
| HKSAR | Respondent | |
and | ||
| BUTT MUHAMMAD GULZAR | Appellant | |
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| Before: | Hon Macrae VP and McWalters JA in Court |
| Date of Hearing: | 8 July 2020 |
| Date of Judgment: | 8 July 2020 |
| Date of Reasons for Judgment: | 17 July 2020 |
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REASONS FOR JUDGMENT
__________________________
Hon McWalters JA (giving the Reasons for Judgment of the court):
1. On 27 June 2019, the appellant was convicted of 4 counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drug Ordinance, Cap 134, on his own pleas in the District Court before District Judge Clement Lee (“the judge”). The judge sentenced the appellant to a total sentence of 48 months’ imprisonment.
2. The appellant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentence and on 6 April 2020, he was granted leave to appeal.[1]
3. At the hearing of the appeal we allowed it, set aside the sentence of the judge and in substitution for it sentenced the appellant to a total sentence of 3 years and 4 months’ imprisonment. We said we would hand down our reasons for doing so at a later date. These are our reasons
The Summary of Facts
4. The Summary of Facts that the appellant admitted for the purpose of his sentencing revealed that on four occasions he sold dangerous drugs to two undercover police officers (PW1 and PW2) separately conducting controlled purchases. The four occasions were:
(i) On 7 September 2018, the appellant sold to PW1 6.39 grammes of cannabis in herbal form for HK$1,000 at the Ground Floor, Sheraton Hong Kong Hotel & Towers, No 20 Nathan Road, Tsim Sha Tsui, Kowloon (Charge 1).
(ii) On 30 September 2018, the appellant sold to PW1 0.65 gramme of a powder containing 0.39 gramme of cocaine for HK$1,200 again at the Ground Floor of the Sheraton Hong Kong Hotel & Towers (Charge 2).
(iii) On 2 October 2018, the appellant sold to PW2 0.68 grammes of a powder containing 0.44 gramme of cocaine for HK$1,200 outside Lee’s Jewellery Co. Limited, No 3 Carnarvon Road, Tsim Sha Tsui, Kowloon (Charge 3).
(iv) On 3 October 2018, the appellant sold to PW1 three plastic bags containing a total of 1.75 grammes of a powder containing 1.32 grammes of cocaine for HK$3,000 again at the Ground Floor of the Sheraton Hong Kong Hotel & Towers (Charge 4).
5. The total quantity of dangerous drugs involved in the four charges were 6.39 grammes of herbal cannabis and 2.15 grammes of cocaine narcotic, with an aggregate street value of HK$6,267.
The mitigation
6. At his sentencing hearing the appellant was represented by Mr John Marray who relied heavily on a written submission tendered to the judge. In particular, Mr Marray referred the judge to a judgment of the Court of Appeal in Attorney General v To Ka Yin[2]where the court dealt with six purchases of cocaine by undercover police officers. In that case, the Court of Appeal held that, notwithstanding the low quantities of narcotic contents (0.37 of a gramme in total), where trafficking was involved, the guidelines in R v Lau Tak-ming & Others[3] were applicable and the starting point for each offence is 2 years’ imprisonment but with adjustment being made in accordance with the totality principle. In that case the Court of Appeal decided upon an overall starting point of 3 years’ imprisonment which it then discounted by one third in order to allow for the guilty plea. The sentence imposed by the Court of Appeal was ultimately 18 months’ imprisonment as the court decided to allow the applicant a further reduction of 6 months as this was an Attorney General’s review of sentence and the court was increasing substantially the sentence under review. Mr Marray urged the judge to sentence the appellant similarly, emphasising that the key issue was totality.
7. Mr Marray also acknowledged that there was an aggravating factor because the appellant was a Form 8 recognizance holder at the time of the offences.
The judge’s Reasons for Sentence
8. The judge prepared a written Reasons for Sentence, copies of which he handed to counsel before he read them into the record. These written Reasons for Sentence contained errors which the judge detected before concluding the sentencing hearing. As a consequence, there then followed discussion with counsel and the judge re-sentenced the appellant. We shall refer to these errors as we set out the contents of his Reasons for Sentence.
9. In sentencing the appellant, the judge referred to the guidelines for trafficking in heroin and cocaine as stated in Lau Tak Ming and HKSAR v Abdallah[4] and the cannabis guideline laid down Attorney General v Chan Chi Man[5]. However, Chan Chi Man was concerned with cannabis resin and as herbal cannabis is four times less potent than cannabis resin, the judge adjusted the guideline to 4 months’ imprisonment in accordance with Attorney General v Tuen Shui Ming and Anor[6]and HKSAR v Chor Lui[7].
10. In respect of Charge 1, the judge adopted a starting point of 3 months’ imprisonment for trafficking in 6.39 grammes of herbal cannabis, which he then enhanced by 2 months for the aggravating factor of the appellant being a Form 8 recognizance holder. After giving a full one third discount for his guilty plea, the resulting sentence was 3 months and 10 days’ imprisonment.
11. In respect of Charges 2-4, the judge adopted a starting point of 24 months for trafficking in the respective quantity of cocaine. He then enhanced each starting point by 3 months on the basis that the appellant was a Form 8 recognizance holder and that he committed these offences shortly after the offence in Charge 1. They were then discounted by one third to allow to the appellant’s guilty plea, and by this route he arrived at a final sentence of 18 months’ imprisonment for each of these charges. However, when first sentencing the appellant he mistakenly said that his final sentence for each of these charges was 16 months’ imprisonment.
12. On the issue of totality, the judge did not refer to To Ka Yin on which Mr Marray relied, but explained in his written Reasons for Sentence how he determined the appropriate totality:
“16. Had I ordered all sentences to run consecutively, that would have attracted a total of 51 months and 10 days’ imprisonment[8], which seems to be excessive. Had I treated the total narcotic content involved in this case as if it is a single charge, that would have attracted a total of about 36 months’ imprisonment, but that would akin to ignore the fact of separate charges and repeated offence within a short period of time. The overall criminality with involvement of undercover police officers and repeated offence in this case should arrive at 44 months’ imprisonment.”[9]
13. The transcript reveals that the judge went on to sentence the appellant by saying:
“As such, the defendant is convicted and sentenced as follows:-
Charge 1 – 3 months and 10 days’ imprisonment, concurrent with Charge 2;
Charge 2 – 16 months’ imprisonment, consecutive to Charge 3;
Charge 3 – 16 months’ imprisonment; and
Charge 4 – 16 months’ imprisonment, with 4 months concurrent to Charge 3 (or, in other words 12 months consecutive to Charge 3).
The total sentence to be served by the defendant is 44 months or 3 years and 8 months’ imprisonment.”
14. The judge then turned to the disposal of exhibits but after doing so he realised that he had erred in his calculation of a final sentence for Charges 2-4. Discounting a final starting point of 27 months by one third did not result in a final sentence of 16 months but rather one of 18 months. However, when it came to totality he decided to adhere to the same orders of consecutiveness with the result that when he re-sentenced the appellant his total sentence became 4 years’ imprisonment. It is necessary to set out the full exchange he had with counsel on this matter:
“COURT: But I think the outcome, the outcome, if I make amendment to Charge 2, should be 18 months consecutive to Charge 3. So when you see ‘16’, should be amended to ‘18’. And, if I may, Charge 4, because of the slip of the tongue or clerical mistake, I think I should make a equal adjustment of ‘4 months concurrent’ to ‘6 months concurrent’, and that should arrive at 48 months.
So let’s work out the final outcome again.
Now, Charge 1 and Charge 2 are concurrent with each other, so just add Charge 1 to Charge 2 would be 18 months’ imprisonment. Yes, just confine ourselves to Charge 1 and Charge 2. So the total should be 18 months’ imprisonment. Is that correct?
MR MARRAY: Yes.
COURT: Now, Charge 3, 18 months, so 18 plus 18...
MR MARRAY: 36.
COURT: ...that bring us to 36, right?
MR MARRAY: Yes.
COURT: 36 and Charge 4, I mentioned 6 months concurrent. That means 12 months consecutive. So the final result should be 48. Can you double-check for me?
MR MARRAY: Yes, that will be 48.
COURT: Yes.
So, Mr Gulzar, I just made a wrong calculation, but I make a proportional adjustment again. All right. So the final sentence you have to serve is 48 months. If you behave well, you need to serve 3 years.
So just to -- may I be -- forgive me if I am too longwinded. The last sentence should be: The total sentence to be served by the defendant is 48 months, or 4 years’ imprisonment.
All right. Anything else? My apologies. Right. Thank you for your assistance.”[10]
The Amended Perfected Grounds of Appeal
15. Mr Phillip Ross, representing the appellant, advanced 5 grounds of appeal against sentence.
16. Ground 1 concerns the judge’s use of a sentencing range that he created as a tool to assist him in assessing an appropriate total sentence for these offences. He referred to this range in [16] of his written Reasons for Sentence. Unfortunately, he erred when calculating the lower parameter of the range. The judge calculated the upper parameter of this range by adding together the final sentences that he imposed on each of the four charges as if they were to be served wholly consecutively to each other. After amendment, to correct the error as to the final sentences for Charges 2-4, the figures for the upper parameter became 57 months and 10 days’ imprisonment.
17. Then, the judge calculated the lower parameter by treating all the dangerous drugs as if they were possessed on one single occasion and were the subject of one single trafficking charge. The total quantity of drugs was 6.39 grammes herbal cannabis and 2.15 grammes of cocaine. The judge found that this quantity of drugs would attract a starting point of 36 months’ imprisonment which became the lower parameter of his sentencing range.
18. However, and this is the point of the appellant’s ground of appeal, the judge adopted a different methodology in his calculation of the two parameters of his sentencing range. In calculating the upper parameter the judge used the final sentences, discounted by one third for the guilty plea, and simply added them together. But for the lower parameter of 36 months’ imprisonment the judge based it on the quantity of drugs without allowing for the guilty plea. Thus, the lower parameter was one third higher than it should have been. Mr Ross submitted that the correct figure for the lower parameter should be 24 months.
19. By Ground 2, the appellant complained that the judge was in error in treating the appellant, who was a man of good character prior to these offences, as a repeat offender for Charges 2-4 by virtue of the commission of those offences which preceded each charge. In support of this ground, Mr Ross argued that a sentence is enhanced on the basis of repeated offending only when a defendant re-offends after he has been convicted and sentenced on an earlier occasion. Mr Ross relied on judgments of the Court of Appeal in HKSAR v Chan Pui Chi[11] and HKSAR v Chau Hon Kwong[12].
20. By Ground 3, Mr Ross argued that the enhancement of two months that the judge made to Charge 1 on the basis that the appellant was a Form 8 recognisance holder was manifestly excessive by reference to the starting point of 3 months’ imprisonment.
21. By Ground 4, Mr Ross argued that the judge wrongly imposed a sentence of 48 months’ imprisonment after having found that the overall criminality of the four offences warranted a term of only 44 months in totality. This ground also arises from the confusion that occurred during the sentencing process.
22. By Ground 5, Mr Ross submitted that the judge was in error when pronouncing the final sentence as being 48 months’ imprisonment when it was not clear whether the sentences for Charges 2 and 4 were to be served concurrently or partially consecutively. Mr Ross argued that, without a clear expression of consecutiveness, the final sentence should be around 34 months’ imprisonment, relying on the common law rule that sentences are presumed to run concurrently unless there is a specific order otherwise[13]. Mr Ross also argued that the appellant would have faced only one count of trafficking had the undercover police officer been immediately arrested after the first transaction and this feature warranted some concurrency in the sentences to reflect disapproval of police conduct in this case.
The respondent’s submissions
23. Ms Margaret Lau, Senior Public Prosecutor, appeared for the respondent. Ms Lau responded to each of the grounds of appeal in a valiant endeavour to uphold the judge’s sentence. However, because we have concluded that we should allow the appeal and sentence the appellant afresh we shall not enlarge an already lengthy judgment by setting out her submissions. Nevertheless we are grateful for the assistance she provided to the court.
Discussion
24. The only issue in this appeal is totality. The judge was aware of the importance of this issue and in order to assist him in assessing a just totality he created a sentencing range. Unfortunately, both of the parameters of this sentencing tool were incorrectly calculated.
25. The judge first calculated the upper parameter of his sentencing range as 51 months and 10 days and with a lower parameter of 36 months he assessed an appropriate totality to be 44 months. This was effectively a range of 15 months and so the totality of 44 months that he first assessed as appropriate, placed the appellant at just over the mid-way point of this range.
26. He later corrected the upper parameter to 57 months and 10 days and re-assessed totality to 48 months but gave no explanation for why he had altered his assessment of the appropriate totality. One can only presume that he thought it followed as a matter of course from the corrections he made to the final sentences for Charges 2-4.
27. Much argument has taken place on whether the judge intended to adhere to 44 months as a just totality or whether it was simply an oversight by him in failing to amend it. In our view it is not necessary for us to resolve this issue as the judge’s tool was, in any event, flawed by having an inappropriate lower parameter.
28. We also note that there may be confusion as to what effect the judge’s orders of consecutiveness have on the total sentence to be served by the appellant. It is clear what he intended, but his final orders may not have given effect to that intent.
29. We, therefore, allowed the appeal and sentenced the appellant afresh. We shall only discuss the grounds of appeal as far as may be necessary for the purpose of explaining the sentences we imposed.
30. First, we must identify and discuss the aggravating factors. In our view the fact that the appellant was trafficking on a number of separate occasions is relevant but not as an aggravating factor. Rather, it is relevant to the gravity of the offending because it enables the sentencer to properly characterise what the appellant was doing, namely operating as a retail seller of dangerous drugs on the streets of Hong Kong.
31. The primary aggravating factor is that the appellant is a Form 8 recognizance holder who is causing harm to Hong Kong whilst awaiting the outcome of his immigration claim. The secondary aggravating factor is that he is able to access different kinds of drugs and also larger quantities of drugs and had no hesitation in doing so.
32. The enhancement for being a Form 8 recognizance holder must be substantial otherwise it has no deterrent value. On many occasions this court has said that the amount of enhancement should be left to the discretion of sentencers but that it will lose its deterrent value in respect of serious criminal conduct if it is less than 6 months. In HKSAR v Singh Gursevak[14] another division of this court discussed this aggravating factor in a thorough traverse of the authorities, which bears repeating:
36. This Court has already decided that it should not attempt to provide guidelines on the length of enhancement for this particular aggravating factor. In giving the judgment of the Court of Appeal in Shah Syed Arif, Macrae JA, as Macrae V-P then was, said at p.675:
[34] We do not agree that this Court should attempt some form of guidelines for the enhancement of sentences which come within this category. The circumstances of each case and each individual will be different, and crimes will differ in the seriousness of their impact on the community and their effect on the reputation of Hong Kong. …
[35] We do not in the circumstances think it is either prudent or possible to issue guidelines in cases which fall into the category we have been discussing. The enhancement of sentence is best left to the discretion of the sentencing judge or magistrate. Obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.
37. However, as Ms Chan points out, helpful guidance on how a sentencing court should approach this particular aggravating factor was provided by Macrae V-P in Ali Saif where he said:
[17] When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.
38. The following principles can be derived from this passage of the judgment:
(i) the purpose of the enhancement is for the courts to ‘mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city’;
(ii) the enhancement must be of such a length that it will deter Form 8 holders from becoming involved in serious crime; and
(iii) in order for the enhancement to have a meaningful deterrent effect it generally should not be less than 6 months for serious offences.
39. Thus, the sentencing principles that underlay the assessment of the amount of the enhancement are:
(i) denunciation by the courts of criminal activity by Form 8 holders; and
(ii) deterrence of all Form 8 holders from committing crimes while they enjoy the freedom to live in Hong Kong as they await the resolution of their claims.
40. The length of the enhancement must adequately accommodate these sentencing principles. But apart from having to accommodate these sentencing principles, how is the length of the enhancement to be assessed? Answering this question requires that regard be had to both the contextual reality for Hong Kong of Form 8 holders and the rationale for their status being an aggravating factor.
41. The contextual reality for Hong Kong in respect of Form 8 holders is that the number of Form 8 holders is many thousands and that the processing of their claims can take years, indeed many years, rather than months. During the period that they await the processing of their claim they are not permitted to work and exist on a limited welfare payment. Finally, it is the experience of the courts that an increasing number of Form 8 holders are being prosecuted for their involvement in a broad range of criminal activity that is committed by them in the time they are at large in Hong Kong awaiting the processing of their claims. In Shah Syed Arif, Macrae JA said:
[33] We should say here that this Court has been concerned for some time by what appears to us to be the increasing prevalence of serious crimes being committed by non-refoulement claimants, in particular torture claimants. That is apparent from the weekly diet of appeals which routinely come before this Court. …
42. The rationale for the status of a Form 8 holder being an aggravating factor was discussed by the Court of Appeal in Norena Gutierrez Cristhian Andres. The court explained:
[25] By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.
43. Of course, the amount of the enhancement will reflect the court’s assessment of the seriousness of the offence and the severity of the adverse impact that the offence has on Hong Kong. Making this assessment will entail the court having regard to the nature of the offence, the circumstances of its commission, its actual impact on the victim, its potential impact on the wider Hong Kong community and finally its potential impact on Hong Kong’s reputation.
44. Clearly, the more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement. If the enhancement is to have a deterrent effect then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months. We do not wish to set an upper limit to the amount of the enhancement other than to make the obvious comments that it should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime that has been committed. Finally, the sentencing court must always have regard to the totality principle in order to ensure that the sentence it imposes is a just and balanced one. But, as this Court pointed out in HKSAR v Lam See Chung Stephen,2 such a sentence may still be a severe one. At [51] the court said:
… It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender but also accommodates other relevant sentencing principles, such as retribution, that is, the need to punish an offender for his misdeeds; where deterrence is needed in respect of a particular offender or offence, to appropriately deter him and others; the need to denounce the conduct and, where an offender preys upon the community, to protect it from his depredations. It is well to remember that at times a severe sentence will be an appropriate sentencing response and just because a sentence is severe does not mean that it is not just and balanced.”
33. In considering the amount of the enhancement for this aggravating factor for this appellant it is necessary to inject an air of reality and common sense into his criminality. He was a retail drug trafficker selling small quantities of different types of drugs on the streets of Hong Kong. As a Form 8 recognizance holder he was no doubt trafficking in dangerous drugs as a means of supplementing the ISS allowance he would have been receiving. Clearly, the act of trafficking dangerous drugs on the streets of Hong Kong is serious criminal conduct. It would be quite wrong to trivialize it just because only small quantities are involved. The street seller of dangerous drugs may be at the bottom of the drug dissemination chain but he is crucial to conveying the product of the more senior drug trafficker to the end-user.
34. But there are also other reasons why it would be wrong to characterize the appellant as just another low level street seller of dangerous drugs. Such a characterization does not adequately portray the gravity of his offending. The streets on which this appellant chose to push his drugs were in the tourist heart of Hong Kong and by his choice of customer he appeared to be targeting foreigners, perhaps assuming them to be tourists. His conduct went to the very core of the rationale for treating his status as an aggravating factor. He betrayed the trust and hospitality extended to him whilst awaiting the processing of his claim; he brought harm to the community of Hong Kong and he damaged Hong Kong’s international reputation.
35. The appellant was convicted of 4 offences but the number is somewhat arbitrary as it was dependent on the duration of the police investigation and the number of controlled purchases that were made in the course of that investigation. The number of purchases and the period of time over which they were made is important in that the longer the duration of the investigation and the greater the number of trafficking offences committed, the more readily can a court infer the contextual reality to which we have referred. Here four purchases took place over a period of almost a month.
36. Furthermore, there is no reason to believe these were isolated occasions and there is no reason to believe that had he not been arrested he would not have continued to traffic in dangerous drugs. By so saying we are not punishing him for uncharged acts of trafficking; rather we are endeavouring, again, to bring greater contextual reality to his crimes.
37. The secondary aggravating factor is that the appellant had access to different types of dangerous drugs and larger quantities of them. As a consequence, the potential harm he could cause to Hong Kong was much greater.
38. We would enhance the sentences for the two aggravating factors by 1 year.
39. In respect of Charge 1 we do not agree that an enhancement of 2 months is disproportionate to a starting point sentence of 3 months’ imprisonment. With such a short sentence, proportionality must give way to the need for meaningful deterrence. The primary goal of the enhancement for the Form 8 status is denunciation and deterrence through severe punishment. If this at times results in disproportion between the amount of enhancement and the head sentence to which it is added, then so be it. Courts cannot allow the importance of the message being sent by the sentences they impose to be undermined or diluted by arguments based on percentages or disproportion.
40. For Charges 2-4, which involved 0.39 gramme, 0.44 gramme and 1.32 grammes of cocaine respectively, an appropriate starting point is 2 years’ imprisonment. This must then be enhanced to allow for the aggravating factors we have identified. As we have said, an appropriate enhancement for these factors is 1 year. The final starting point for each charge becomes 3 years which, when discounted for the guilty plea, becomes 2 years’ imprisonment.
41. This brings us to the issue of totality which has to be assessed against the contextual reality which we have earlier described. We have had regard to precedent cases such as HKSAR v Mohammed Tofael Ahmed[15], HKSAR v Muhammad Riaz Awan[16] and HKSAR v Pau King Kong[17] and we can discern from them a pattern of sentencing suggesting a range of sentence, after a guilty plea, of 3 years upwards. In our view the contextual reality of this appellant, together with these aggravating factors, warrants a total sentence after trial of 5 years’ imprisonment.
42. The overall starting point of 5 years, once discounted by one third results in a final sentence of 3 years 4 months’ imprisonment. That is the total sentence that we imposed on the appellant and that total is achieved by the following orders:
(i) the sentence for Charge 1 will be served concurrently with all other sentences;
(ii) 6 months of the sentence for Charge 3 will be served consecutively to the sentence being served for Charge 2; and
(iii) 10 months of the sentence for Charge 4 will be served consecutively to the sentence being served for Charge 3.
Disposition
43. For these reasons we allowed the appeal, set aside the sentence of the judge and in substitution for it sentenced the appellant to a total term of 3 years and 4 months’ imprisonment.
| (Andrew Macrae) | (IAN MCWALTERS) |
| Vice-President | Justice of Appeal |
| Ms Margaret Lau SPP, of the Department of Justice, for the respondent |
| Mr Phillip Ross, instructed by Sammy Ip & Co, assigned by DLA, for the appellant |
[2] CAAR 3/1996, unreported, 30 April 1996.
[3] [1990] 2 HKLR 370
[4] [2009] 2 HKLRD 437.
[5] [1987] HKLR 221
[6] [1995] 2 HKC 798
[7] [2001] 3 HKLRD 95
[8] This was based on his erroneous calculation of a final sentence of 16 months’ imprisonment for Charges 2-4 but was subsequently amended to 57 months and 10 days’ imprisonment to reflect the correct calculation for the final sentence of 18 months’ imprisonment. See also Appeal Bundle, pages 49Q- 50A.
[9] Appeal Bundle, page 50A-G.
[10] Appeal Bundle, pages 52I-53F.
[11] [1999] 2 HKLRD 830
[12] [2011] 1 HKLRD 630
[13] PNJ v The Queen [2008] HCA Trans 370 at 33 counter 1455
[14] [2019] 2 HKLRD 274
[16] CACC 135/2010, unreported, 3 December 2010.
[17] [2013] 3 HKLRD 676.