HKSAR v. Tam Kwok Lun
Read the full judgment text of CACC 200/2015 on BabelCite. This Court of Appeal judgment was delivered on 1 March 2016.
1. The applicant appeared before Deputy High Court Judge Tallentire (“the judge”) on an indictment charging him with possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 and trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 22 July 2014 he pleaded guilty to both these counts and on 23 July 2014 was sentenced to a total period of 5 years’ imprisonment.
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CACC 200/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 200 OF 2015 (ON APPEAL FROM HCCC 152 OF 2014) ------------------------
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__________________________ REASONS FOR JUDGMENT __________________________ Introduction 1.The applicant appeared before Deputy High Court Judge Tallentire (“the judge”) on an indictment charging him with possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 and trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 22 July 2014 he pleaded guilty to both these counts and on 23 July 2014 was sentenced to a total period of 5 years’ imprisonment. 2.At the time of sentencing the prosecution applied to forfeit a motor vehicle, three telephones and cash of HK$6,461 and ¥70RMB. This application was opposed by counsel for the applicant and at the conclusion of the hearing of the application the judge made an order forfeiting the motor vehicle and the three mobile phones but returning the quantity of currency to the applicant. The applicant subsequently applied for an extension of time in which to give notice of his application for leave to appeal the confiscation order made by the judge. 3.At the hearing of the application I refused it and said I would give my reasons for doing so at a later date. This I now do. The background to the offence 4.In the Summary of Facts which the applicant admitted for the purposes of his sentencing, the applicant admitted that on 12 September 2013 he bought a Volkswagen golf motor vehicle, registration number AX982, for the price of HK$328,000. The applicant obtained possession of the car on 18 September 2013 and had it registered in his name on 28 September 2013. On that being done a new registration number of SF5390 was given to the motor vehicle. 5.At approximately 1:22 am on 28 September 2013 police observed the applicant’s motor vehicle parked outside the Bank of China building at 18-24 Kau Yuk Road, New Territories Its engine was running. Police saw the applicant exit his car and walk into the Bank of China. The police approached the applicant’s vehicle and on opening the driver’s door of the vehicle the police detected a smell of alcohol. The police officers saw three male persons sitting in the car. Two were in the rear seat and one was in the front passenger seat. 6.The applicant returned to his car and told the police officers that he had stopped the car at that location so that he could withdraw money from the bank and that he would drive away immediately. The applicant was asked to produce his licence and on showing the police officer his identity card he told them that he had been suspended from driving because of a drink driving offence. One of the police officers then called on the police radio for further assistance. 7.When additional police officers arrived they searched the applicant and all the persons in the car but no suspected item was found on them. The police officers then proceeded to search the vehicle. One of the police officers found a red cloth bag hanging from an indicator light lever on the left hand side of the steering wheel. This bag contained a transparent resealable plastic bag inside of which was a white crystalline substance which the officer suspected was dangerous drugs. 8.These drugs were the subject of count 1 on the indictment. Upon being cautioned the applicant said to the police officer “inside the bag is K Chai for my own consumption.” 9.Police then continued their search of the applicant’s vehicle. Inside the boot of the car, under a black windbreaker jacket, they found a black plastic bag inside of which was a transparent resealable plastic bag containing a white crystalline substance suspected of being dangerous drugs. These drugs were the subject of count 2 on the indictment. 10.In response to being cautioned in respect of these drugs the applicant said:
11.The police also seized three mobile phones belonging to the applicant. Two were seized from his person and one from inside the vehicle. 12.The dangerous drugs seized from the applicant’s vehicle were subsequently examined by the Government Laboratory. The drugs in the red cloth bag in the front of the applicant’s car that are the subject of count 1 on the indictment, were found to be 13.5 grammes of a powder containing a total of 10.5 grammes of ketamine. 13.The drugs in the black plastic bag found in the boot of the applicant’s car, the subject of count 2 on an indictment, were found to be a total of 240 grammes of powder containing 180 grammes of ketamine. 14.The retail value of all the dangerous drugs was estimated at HK$30,884. Finally, the applicant admitted in the Summary of Facts that the drugs the subject of count 1 were possessed for the purposes of his own consumption and the drugs that are the subject of count 2 on the indictment were possessed for the purposes of trafficking. The mitigation 15.The applicant was represented by Mr Simon Ng Ka Chung, who in his address to the judge informed him of the applicant’s background. The applicant had a drug history having been convicted for possession of dangerous drugs in 2009 and sentenced to DATC. In 2011 he was convicted of trafficking in dangerous drugs and sentenced to 2 years 8 months’ imprisonment. In 2013 he was convicted of the offence of driving a motor vehicle with an alcohol concentration above the prescribed limit and disqualified from driving for 6 months. That disqualification period was still running when he committed the current offence and as a consequence he was prosecuted for driving whilst disqualified and using a motor vehicle on a road against third party risks. 16.Mr Ng informed the court that after the applicant’s release from prison for his previous drug trafficking offence he obtained employment as an air-conditioning worker, earning about HK$20,000 per month. Unfortunately, he met friends whom he had known in his drug trafficking days and he relapsed into drug activity. He was approached by one of these friends and asked if he wished to make some quick money by storing some drugs for him. The applicant agreed and on the day of the offence, after work, he had taken possession of the drugs from this person. 17.After he obtained possession of the drugs he removed a small amount of the drugs so that he could consume them and the balance he put in the boot of his car. He intended to store the drugs in his flat and to await instructions as to when and by whom they would be collected from him. However, that evening he had a social appointment with the three friends who were present in his car when he was arrested. This diverted him from immediately taking the drugs to his flat and later that evening he was caught by the police. 18.His counsel said that he would was very remorseful for what he had done and he handed to the court a letter written by the applicant expressing his remorse. 19.His counsel then went on to address the prosecution application to forfeit the vehicle, the three mobile phones and the cash that was found on him. Mr Ng opposed the application for forfeiture on the grounds that there was no evidence that the car, telephone or the money were possessed by the applicant in connection with drug trafficking activities. He argued that the court has a discretion whether to forfeit these items but that that discretion must be exercised fairly and judicially. 20.In support of this submission he said that there was no evidence that the car had been purchased for the purposes of trafficking and there was no evidence that the car had been used in the past for the purpose of trafficking in dangerous drugs. He maintained that even on the occasion of their discovery the car was not being used only for the purpose of transporting the dangerous drugs. It was his argument that the drugs just happened to be stored in his vehicle prior to him taking them home and it was an unfortunate coincidence that they were discovered by the police before he had the opportunity to get them into his flat. Had he not had a social appointment that night then the drugs would have been taken straight to his flat and stored there. He argued that in these circumstances the car should not be regarded as having been used for the purpose of distributing the drugs or conveying them. 21.As to the telephones he similarly argued there was no evidence that they had been used or were to be used for the purpose of trafficking in dangerous drugs. As to the money found on the applicant he said that there was no evidence to show that those monies were the proceeds of trafficking in dangerous drugs. 22.In reply to this submission the prosecutor said that on the applicant’s own story the vehicle was being used to transport the drugs to the applicant’s flat where the drugs were to be stored for later collection. This meant that the transportation was part and parcel of the ultimate supply of the drugs. As the motor vehicle was being used to convey the drugs from receipt of them to their place of storage, it was being used in connection with drug trafficking and was therefore liable for forfeiture. 23.As to the telephones and the quantity of currency found in the applicant’s possession the prosecutor simply asked that the inference be drawn, in the whole of the circumstances, that they were to be used in trafficking or were the proceeds of trafficking. The Judge’s Reasons for Sentence and forfeiture 24.After referring to the facts of the case and the mitigation that had been advanced on behalf of the applicant the judge noted that the main point of mitigation was the applicant’s plea of guilty and went on to impose a sentence of 10 months’ imprisonment (reduced from 15 months for the applicant’s guilty plea) on the 1st charge of possession of dangerous drugs, and a sentence of 5 years’ imprisonment (reduced from a starting point of 7.5 years) for the 2nd count of trafficking in the dangerous drugs. He ordered that the two sentences be served concurrently thereby reaching a total sentence of 5 years’ imprisonment. 25.In respect of the application for forfeiture the judge stated:
The application for an extension of time in which to apply for leave to appeal 26.The applicant attached to his Form XI an affirmation in which he said that when he started to serve his sentence on 22 July 2014 he assumed that his motor vehicle and phones had already been auctioned. Later on he wrote to the Criminal Investigation Team of Yuen Long Police District and asked if in fact they had been auctioned and was told they were still kept in the police station. He then said that he would therefore like to apply for leave out of time against their forfeiture. His Form XI is dated 15 June 2015 and so is 10 months out of time. The application is not supported by any other material relating to it and as the applicant is unrepresented there are no Perfected Grounds of Appeal or written submission filed in support of the application for leave to appeal the forfeiture order. 27.At the hearing of the application the applicant explained that he had been wrongly advised by his welfare officer that he had no right of appeal. Later he was told to write to the High Court and he started doing so in December 2014. 28.In respect of his complaint about the forfeiture order he said he did not buy the car in order to use it for trafficking in dangerous drugs and he still has to repay his mother for the cost of the car as she funded its purchase. Discussion 29.There is an issue as to whether or not the forfeiture order should be treated as part of the applicant’s sentence and can, therefore, be the subject of an appeal against sentence. The law is clear that applications for forfeiture are civil in nature. Nevertheless, a forfeiture order could be brought as an appeal against sentence if it could be said to be within the definition of sentence in section 80 of the Criminal Procedure Ordinance, Cap 221. Section 80(1) states:
30.Thus, the question becomes whether an order of disqualification is an order made “in dealing with an offender”. I am not aware of any decision of the Court of Appeal which addresses this question but there is no doubt that for quite some time, and at least since R v Lai Chin Hung [1980] HKC 283, it has been assumed that a forfeiture order was part of the sentence and could be appealed as an appeal against sentence. It may be that this view of a forfeiture order stems from the fact that the vast bulk of such orders are made at the conclusion of a prosecution immediately after or at the same time as the sentencing of the defendant. Again, in the majority of cases the owner of the property will be the defendant and so the appearance is created of an order being made “in dealing with an offender”. But does this reflect the legal reality? 31.In answering this question it must be remembered that an order for forfeiture is not just civil in nature but it is made in in rem proceedings against the thing sought to be forfeited.[1] All this would suggest that, in terms of the section 80 definition, the order that is made by the judge is made against the property, rather than the offender. It should also be noted that the order is made at the end of a proceeding that need not involve an offender at all. 32.The contrary argument would be that the definition should be given a broad interpretation to include any order that affects the defendant. Thus, if the owner of the property is the defendant any order depriving him of it should be regarded as part of his sentence. 33.As interesting as these arguments are, in the present case it is not necessary for me to decide whether or not a forfeiture order is within the definition of sentence. 34.On the assumption that the application is properly before me I have considered whether the explanation advanced by the applicant to explain his delay is satisfactory. The delay is considerable and I am in no doubt at all that it has not been satisfactorily explained. The explanation for the delay that was advanced by the applicant in his affirmation is different from the explanation advanced in court. Neither is credible. 35.Nevertheless, the practice of Court of Appeal is not to shut out meritorious appeals and so I shall also consider whether there is any merit in the proposed appeal.[2] 36.In respect of the forfeiture application, the factual basis for it was the Summary of Facts admitted by the applicant. The contents of this document provided a sufficient evidential basis for the judge to find that the motor vehicle was used in the commission of the offence. On the applicant’s own case he was intending to use his motor vehicle to convey the drugs from the location he took possession of them to the place where he lived and where he would store them. The fact that other circumstances intervened to divert him from immediately completing this task is irrelevant. In respect of the three mobile phones the judge drew an inference that was open to him on the evidence before him. I can detect no error by the judge in his analysis of the evidence or in his application of legal principle to it. 37.Notwithstanding that the applicant has no complaint in respect of the period of imprisonment imposed on him, as it is part of his sentence, I feel I should, out of more abundant caution, consider the merits of those sentences. This can be briefly done. There is nothing at all unusual about the sentences imposed upon him for both offences. There is no error in the starting points adopted by the judge or the discounts allowed by him. They are both perfectly proper sentences as is the order that they be served concurrently. Conclusion 38.For these reasons I refused the application for an extension of time in which to appeal sentence. I informed the applicant of the power of the Court of Appeal contained in section 83W(1) of the Criminal Procedure Ordinance, Cap 221.
Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent The applicant appeared in person [1] See Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877. [2] See HKSAR v Oh Chun Kit [2013] 1 HKLRD 437. |
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