HKSAR v. Chan Kam Che

CACC 357/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 357 OF 2016

(ON APPEAL FROM HCCC NO 393 OF 2016)

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Before: Hon Macrae JA in Court

Date of Hearing: 12 April 2017

Date of Judgment: 12 April 2017

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J U D G M E N T

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1.By way of a notice (Form XI) filed on 24 November 2016, the applicant seeks leave to appeal against an overall sentence of 60 months’ imprisonment imposed by Anthea Pang J (“the Judge”) in the High Court on 10 November 2016, following his pleas of guilty at Eastern Magistracy to the following charges, for which he was committed to the High Court for sentence:

(a) Possession of a dangerous drug, namely 0.96 gramme of a crystalline solid containing 0.95 gramme of methamphetamine hydrochloride (commonly known as ‘Ice’), contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (the 1^st Charge);

(b) Trafficking in a dangerous drug, namely 9.94 grammes of a crystalline solid containing 9.81 grammes of ‘Ice’, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (the 2^nd Charge); and

(c) Possession of an offensive weapon in a public place, namely a beef knife, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245 (the 3^rd Charge).

The facts

2.At 01:25 hours on 12 February 2016, the applicant was stopped by a police officer (PW1) at the junction of Kansu Street and Shanghai Street, Yaumatei, since he appeared to be acting furtively.  Upon search, the dangerous drugs, the subject matter of the 1^st Charge, were found contained in a cigarette box inside the applicant’s right front trouser pocket. A beef knife in a paper sheath, the subject matter of the 3^rd Charge, was further found inside a green rucksack being carried by the applicant at the time.  The said knife was in due course examined in open court by the judge, who described it as “a lethal weapon” with “a sharp edge and blade”[1].  The applicant was arrested and cautioned in respect of the offences described in the two Charges, whereupon he admitted that he possessed the drugs for his own consumption but remained silent when cautioned for possession of the offensive weapon.

3.Upon a further search at Yaumatei Police Station, 7 packets of suspected dangerous drugs, later confirmed to be the subject matter of the 2^nd Charge, were found in the applicant’s right front trouser pocket.  The applicant admitted that he received a few hundred dollars as reward for delivering the drugs to Jordan.

4.The street value of the drugs at the time was estimated at HK$3,303.

5.The applicant further stated in a subsequent video recorded interview on the same day that:

(a) In relation to the drugs, the subject matter of the 1^st Charge, he had bought them for his own consumption from a Nepali male at about 01:00 hours that day in an amusement game centre; however, he could not recall the name and location of the said game centre;

(b) In relation to the drugs, the subject matter of the 2^nd Charge, he was asked by the Nepali male to take the drugs to a park in Jordan on the promise of a reward of HK$300.  He did not know the Nepali male or the person who would receive the drugs from him; and

(c) In relation to the knife, the subject matter of the 3^rd Charge, he claimed that he had put the beef knife into his rucksack after work (he was a decoration worker), intending to bring the knife home for cooking but forgot to take it out; the paper sheath was made by the applicant.

6.The applicant admitted and accepted before the magistrate that he had committed the three offences.

Reasons for sentence

7.The judge noted that the applicant was 50 years of age and a decoration worker earning about HK$20,000 per month at the time of his arrest.  She also had regard to his criminal record: he had 10 previous convictions, of which 4 were for possession of a dangerous drug, while 2 were for trafficking in a dangerous drug.  She also noted the contents of a letter of mitigation written to the court by the applicant.

8.Following the guidelines for trafficking in ‘Ice’ set out in Attorney General v Ching Kwok Hung[2] and HKSAR v Tam Yi Chun[3], as well as the authority of HKSAR v Mok Cho Tik[4] in respect of possession of a dangerous drug, the judge adopted the following starting points:

(a) 1^st Charge (possession of a dangerous drug): 12 months’ imprisonment;

(b) 2^nd Charge (trafficking in a dangerous drug): 7 years’ imprisonment; and

(c) 3^rd Charge (Possession of an offensive weapon in a public place): 9 months’ imprisonment.

9.Discounting the starting points by one-third for the applicant’s pleas of guilty, the applicant was sentenced to 8 months’, 56 months’ and 6 months’ imprisonment respectively on the three Charges.

10.Although the judge found that the three offences were separate offences, and that the sentences could be served consecutively, she nevertheless considered the totality of sentence and ordered the sentences on the 1^st and 2^nd Charges to run wholly concurrently with each other; while 4 months of the sentence imposed in respect of the 3^rd Charge was ordered to run consecutively to the sentence on the 1^st and 2^nd Charges, with the balance to run concurrently.  The resulting total term was 5 years’ (or 60 months’) imprisonment.

Grounds of appeal against sentence

11.In home-made grounds of appeal attached to his Form XI, the applicant complains that his “7 years’ imprisonment” was excessive and relies on an authority, said to be CACC 158/2016, in order to show that his sentence was manifestly excessive.

Respondent’s submissions

12.Mr Andy Lo, on behalf of the respondent, submits that none of the individual sentences passed on the applicant were either wrong in principle or manifestly excessive.

13.In respect of the 2^nd Charge, the respondent submits that the adoption of a starting point of 7 years’ imprisonment for the quantity concerned under the relevant guidelines was correct.  As for the case of CACC 158/2016, the applicant in that case had abandoned his appeal against conviction, which involved trafficking in 12.8 grammes of ‘Ice’ before any hearing was set down before the appeal court.  In any event, it was accepted by the trial judge in that case that a significant proportion of the drugs concerned was for the defendant’s own consumption. Accordingly, the case was of no assistance to the applicant and, in any event, not binding on this Court.

14.It was further submitted by Mr Lo that the applicant had 2 previous convictions for trafficking in dangerous drugs in 2008, for which he had been sentenced to a concurrent overall term of 16 months’ imprisonment, yet the judge did not enhance the sentence for the applicant’s recidivism.

15.In respect of the 3^rd Charge, it was submitted that the knife concerned had a sharp blade of about 6 inches in length; accordingly, a starting point of 9 months’ imprisonment was entirely appropriate: see, in particular, HKSAR v Ip Chi Wang[5].

16.It was contended that the overall sentence of 5 years’ imprisonment was entirely appropriate and could even be regarded as generous, in view of the applicant’s similar previous convictions.

Consideration

17.The most serious of the applicant’s offences was the 2^nd Charge, involving the trafficking in 9.81 grammes of ‘Ice’. The relevant guideline bracket for this quantity of ‘Ice’ was between 3 and 7 years’ imprisonment, with the quantity falling just under 10 grammes of narcotic, which would normally have attracted 7 years’ imprisonment.  Given that the sentences in respect of the 1^st and 2^nd Charges were ordered to run concurrently, and given the fact that the applicant had two previous convictions for trafficking, I can see no reasonably arguable ground of appeal that the overall sentence of 56 months’ imprisonment in respect of both Charges was manifestly excessive or wrong in principle.  The circumstances of another case at first instance are not relevant to the consideration of this appeal.

18.As for the possession of an offensive weapon, it was a wholly separate and distinct offence, for which the judge rightly concluded there should be a consecutive element in sentence, notwithstanding that there is no tariff for such an offence.  In HKSAR v Ip Chi Wang, the Court observed, in upholding a sentence of 9 months’ imprisonment after trial for possession of an offensive weapon[6]:

“...the magistrate in this case in any event and quite properly on the evidence, found not only was the knife a weapon by its own nature, but that also the circumstances of the appellant carrying it in a concealed manner in a public place were such as to cause the magistrate to properly infer that the appellant possessed the knife to use it or in some way deal with it for the purpose of some future criminal activity.”

19.I cannot see any reasonable arguable ground of appeal that the individual sentence in respect of the offensive weapon offence was either manifestly excessive or wrong in principle.  Nor can I see any reasonably arguable ground of appeal that the judge erred in ordering a consecutive element in sentence in respect of the 3^rd Charge, and nor is there a reasonably arguable ground of appeal that the overall sentence of 5 years’ imprisonment in respect of all three offences is either manifestly excessive or wrong in principle.

Conclusion

20.The application for leave to appeal against sentence is, accordingly, refused.  The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Derek Lai ADPP, of the Department of Justice, for the Respondent

The Applicant appeared in person