HKSAR v. Chan Ka-wai

CACC 44/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 44 OF 2016

(ON APPEAL FROM DCCC NO. 843 OF 2015)

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BETWEEN

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J U D G M E N T

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1.On 31 May 2016 the applicant’s application for leave to appeal against sentence was dismissed, pursuant to rule 39 of the Criminal Appeal Rules, Cap. 221 on his having filed a Notice of Abandonment of that application. At the invitation of the Court he now invites the Court to treat the abandonment as a nullity and to entertain his application for leave to appeal against sentence, confined to the order for forfeiture of two Samsung mobile telephones found in his possession at the time of his arrest.

2.On 15 February 2016, the applicant gave notice of his application for leave to appeal against the sentences imposed by District Court Judge Woodcock following the applicant’s plea of guilty on 29 January 2016 to a charge of trafficking unlawfully in dangerous drugs, namely 5.86 grammes of cocaine and 33.56 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The applicant was sentenced to 4 years’ imprisonment and an order for forfeiture made pursuant to section 56(1) of the Dangerous Drugs Ordinance.

3.On 31 May 2016, the applicant filed a Notice of Abandonment against Sentence[1] in which he stated:

“ I abandon all further proceedings in regard to the appeal of sentence only. The appeal against confiscation order made by the trial judge still proceeds.”

The facts

4.At about 5:20 p.m. on 21 July 2015, the applicant was intercepted by Customs & Excise officers at the ground floor lift lobby of Tak Yu House, Tak Long Estate in Kowloon.  He was found to be in possession of a key to a motorcar and three mobile telephones, one Nokia telephone and two Samsung telephones.  In a search of his motorcar, which was parked outside Skyline Tower, Kowloon Bay, the officers found $34,700 and the dangerous drugs the subject of the charge, namely 15 packets containing 5.86 grammes of cocaine andninere-sealable plastic bags containing 33.56 grammes of ketamine. The applicant admitted that he was delivering the drugs to customers for a reward of $700 per day. 

Reasons for sentence

5.In sentencing the applicant, the judge said:

“ I take into account the bulk of the narcotics, the drugs, is ketamine, and I will consider a 5-year starting point appropriate.

However, I cannot ignore the fact there is significant amount of cocaine and, adopting the combined approach, I am going to increase that starting point by 1 year to take into account the cocaine.

Therefore, the starting point I take is one of 6 years.

As I have said, I do not accept the submission that any of the dangerous drugs was for the defendant’s own use.

There is no reason to reduce the 6-year starting point except by one-third for the defendant’s plea.

After that discount is applied, a discount of 2 years, for this offence the defendant is sentenced to 4 years’ imprisonment.”

Forfeiture

6.The applicant challenged the application, by the prosecution, pursuant to section 56(1) of the Dangerous Drugs Ordinance, Cap. 134 for forfeiture of $34,700 and two of the mobile telephones found in his possession.  The applicant gave evidence.

7.In her ruling, the judge ordered the three mobile telephones and the $34,700 to be forfeited.  In doing so, she said:

“ The defendant challenges the forfeiture of the $34,700 and two Samsung phones. Of that cash he says $18,000 was his savings, and the balance of the money, 16,700, was the proceeds of trafficking drugs. He did not tell the police that some was his and some was the trafficking money, he told the police all of the money was his.

The defendant elected to give evidence on this issue. There is more than prima facie evidence to connect the money and phones to trafficking dangerous drugs in view of the defendant’s own admission. The defendant offers an explanation in the witness box.

The onus is on the prosecution to prove the items are connected to drug-related offences, and the standard of proof is on a preponderance of probability. The purpose of the law and the right to forfeit is to make sure crime does not pay especially when that crime involves dangerous drugs.

With regard to the money I have heard what the defendant has had to say and I reject it outright. I do not believe that he has saved $18,000 and left it in his vehicle between January and July 2015, and he then mixed it with $16,700, the proceeds of selling drugs.

As for the telephones, I do not believe that drug traffickers only converse or communicate with one phone out of three.  The only way to deliver drugs to customers in this method is to communicate by mobile phone.  Of course, it is very likely that the phones would also be used for personal use, but I cannot differentiate them.  The overriding factor is that phones must be used to sell drugs.”

Grounds of appeal

8.At the hearing today, the applicant indicated that the ambit of his application was narrower than seeking return of the two Samsung mobile telephones.  Rather, he sought only the provision of data stored on one of the Sim cards of one of the Samsung telephones, namely the directory of contacts which set out telephone numbers as againstnames.  In particular, he sought only what he said were the telephone numbers of members of his family.  He said that he had made that request in general terms in the course of his evidence before the judge.  He accepted that he had not particularised that requests by reference to the names of persons he said were family members.

The respondent’s submissions

9.In the written submissions of the respondent it was submitted that the starting point of six years’ imprisonment taken by the judge was entirely appropriate, given the judge’s statement that she did not propose to increase the sentence to reflect the fact of the aggravating factor that the applicant was trafficking in more than one kind of dangerous drugs.  Of the judge’s order that the $34,700 and three mobile telephones be forfeited, the respondent invited the Court to note that the judge had received the evidence of the applicant and disbelieve him.  That, she was entitled to do.

10.In his oral submissions, on behalf of the respondent, Mr Nicholas Wong submitted that, although the judge had not dealt explicitly with the request for the return of data in the Contact Directory of one of the Sim cards, it was clear by inference that she had done so.  He pointed to the fact that in her ruling the judge said that, whilst she accepted that the applicant might have made personal use of the telephones as well as used them for purposes of drug trafficking, she found “but I cannot differentiate them.”  In the result, he invited the Court to refuse the application for leave to treat the Notice of Abandonment of the application for leave to appeal against sentence as a nullity.

A consideration of the submissions

11.Section 80(1) of the Criminal Procedure Ordinance, Cap. 221 provides that:

“ In this Part-

“sentence”, in relation to an offence, includes any order made by a court in dealing with an offender, including a hospital order.”

12.The Part of the Ordinance to which reference is made is Part IV, which, inter-alia, makes provision for the right of appeal against sentence.  Section 83G provides that:

“ A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.”

13.Section 83 of the District Court Ordinance, Cap. 336 provides that sections 80 to 83Y of the Criminal Procedure Ordinance shall apply to criminal proceedings in the District Court and, in particular that any reference to “indictment” shall be understood to refer to a charge sheet.

14.Clearly, in the circumstances of this case the order of forfeiture made by the judge falls within the term ‘sentence’.  Given the very clear statement of the applicant in his Notice of Abandonment of the application for leave to appeal against sentence that he wished to persist in respect of this application with regard to forfeiture, it is regrettable that the notice was not refused.  The order of forfeiture was subsumed in the overall ‘sentence’ imposed by the District Court Judge.  In those circumstances, the Court intimated to the applicant in a letter that the Court was prepared to proceed on the basis that the applicant wished the Court to treat the Notice of Abandonment as a nullity.  Today, the applicant confirmed that to be the case.  It is on that basis, notwithstanding that no notice of motion has been filed, that the court has entertained the application.

15.It is clear that, having received the applicant’s evidence, in which he asserted that $18,000 or $34,700 represented his savings, the judge rejected that evidence and also found that, whether or not the applicant had made personal use of all three telephones in respect of which forfeiture was sought, nevertheless she rejected his evidence that he used only one of the three telephones for purposes of communicating in respect of trafficking in dangerous drugs.  As a result, the judge ordered the forfeiture of all of the money and all three mobile telephones.  I accept Mr Wong’s submission that the clear inference is that the judge had considered and refused the application of the applicant that he be provided with the data contained in the Contact Directory of one of the Sim cards.  That is why she said that she was unable to differentiate between the use of the telephones for personal and drug trafficking purposes.  She found that the “phones must be used to sell drugs.”  She had no evidential basis to distinguish between data relating to drug trafficking or personal use.

16.It is to be noted that, by contrast, the judge had ordered that the applicant be provided with other data to be found on the two Samsung telephones.  She ordered:

“ …the defendant will be entitled to have transferred to a USB all photographs in phones either P29 or P30…those I am certain would not be connected to any drug-trafficking activity.”

17.There is no basis apparent to this Court to impugn those findings.  Indeed, with respect to the judge, they resonate with common sense.

Conclusion

18.Accordingly the application for leave to treat the abandonment of the applicant’s leave to appeal against sentence as a nullity is refused.

19.The applicant is advised that, pursuant to rule 42 of the Criminal Appeal Rules, Cap. 221, he may renew his application to treat the abandonment of his leave to appeal against sentence as a nullity.  He must do so within 14 days.  However, he is also advised that were he to do so, and the Court to determine that the renewal was without justification, the Court has power to order that some of the time that the applicant has spent in custody since giving notice of that application and the hearing of the application may be ordered not to count towards the sentence that the applicant has served.

Mr Nicholas Wong, SPP, of the Department of Justice, for the respondent

Applicant appeared in person

[1]Form VII.