HKSAR v. Jallow Pateh and Another

HCMA 81/2017

[2018] HKCFI 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 81 OF 2017

(ON APPEAL FROM ESCC NO 94 OF 2017)

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REASONS FOR JUDGMENT

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BACKGROUND

1.Both appellants appeared before Winston Leung, Esq. (“the Magistrate”) sitting at the Eastern Magistracy for trial.  The 1^st appellant (“D1”) was jointly charged with KEBBEH Mustapha (“D2”) and both were convicted after trial of one charge of trafficking in a dangerous drug (Charge 1).  The date of offence was 15 April 2016 and the quantity was 0.38 gramme of a powder containing 0.25 gramme of cocaine.

2.D1 was also charged with the 3^rd appellant (“D3”) with another offence of trafficking in a dangerous drug (Charge 2) and both were also convicted after trial.  The date of offence was 25 May 2016 and the quantity was 0.47 gramme of a powder containing 0.33 gramme of cocaine.

3.As a result, D1 was convicted of the two charges (Charges 1 and 2) and D3 was convicted of Charge 2.  For D1, he was sentenced to 24 months of imprisonment for each charge and 18 months of imprisonment of Charge 1 and Charge 2 were ordered to run concurrently, resulting in a total sentence of 30 months.  For D3, the imprisonment term imposed was 24 months.  Both D1 and D3 appeal against their convictions and sentences.  After the hearing, I dismissed their appeals forthwith and the following is my full reasons for judgment.

PROSECUTION CASE

4.In the Statement of Findings, the Magistrate has carefully outlined the prosecution case which was essentially a covert police operation between April and May 2016 conducted in Lan Kwai Fong, Central during which an undercover police officer DPC 3903 (“DPC Tsang”) posed as a customer and successfully bought the cocaine from D1 – D3:

“ I will give a narrative of the prosecution case here. Given the nature of the defence and for clarity sake, the identity of the defendants was based on the allegations of the prosecution which still required appropriate proof later. DPC3903 Tsang Kit (DPC Tsang) was assigned the duties of undercover agent in the operation. The supporting teammates of the two occasions relevant to this case were as follows:

(1) Charge 1 (against D1 and D2) — the supporting teammate was DPC8367 Lam Hin-ho (DPC Lam);

(2) Charge 2 (against D1 and D3) — the supporting teammate was DPC6349 Wong Ching-lung (DPC Wong).

DPC Tsang testified in this case under an immunity from prosecution.

In relation to the incident on 15 April 2016, DPC Tsang testified to the events that occurred that night. At 0141 hours, he was near the 7-Eleven convenience store at No. 41 D’Aguilar Street. D2 approached him and spoke to him in English, ‘Hey, man, you want some cocaine tonight? $1,000 one gramme. I give you one?’ He nodded his head and gave D2 $1,000 in two banknotes of $500 each. At this time, D1 was standing next to D2. D2, pointing at him, told D1, ‘Give him cocaine, one gramme only.’ D1 said to DPC Tsang, ‘Follow me.’ DPC Tsang followed both of them and later arrived at the place in Hollywood Road junction with Pottinger Street. On the way, he asked D1 and D2 their names. D1 told him that he was called ‘Jermat’. D2 told him that he was called ‘Bull’ and DPC Tsang jokingly gestured with the horns of the bull. There D1 took out a small transparent bag containing powder from the sleeve of his right sock and gave it to him. He kept this bag in his empty trouser-pocket. He did fiving with both of them before he left them. In a place in vicinity, he called DPC Lam and described the physical features and the clothings of D1 and D2 to him. He stayed at the scene and kept watching D1 and D2 until he saw DPC Lam intercepted D1 and D2 for enquiry. He then went back to the Hong Kong Island Headquarters and gave the bag of powder to Exhibit Officer DPC7289 for him to follow up.

DPC Lam testified that he was watching and following DPC Tsang within 5 metres between them all the time. He saw DPC Tsang was talking to D1 and D2 at 7-Eleven convenience store at 41 D’Aguilar Street and later saw them going to Hollywood Road junction with Pottinger Street. He saw DPC Tsang doing fiving with D1 and D2 and left them. He received call from DPC Tsang telling him about the physical features of D1 and D2 and their clothings. After about 5 minutes, he went over to intercept D1 and D2 for identification check and got the details of their Form 8s and their personal particulars. In this way, the identities of D1 and D2 were established.

DPC Tsang also testified to the events that occurred on the night of 25 May 2016. At 0029 hour, he was at 41 D’Aguilar Street near the 7-Eleven convenience store. He saw D1 was with another black male who was later identified to be D3. D1, on his own initiative, came to talk to him in English, ‘How are you, man? I have good cocaine tonight. Buy it from me. 1,000 Hong Kong dollars, one gramme.’ He said, ‘Okay.’ D1 pointed at D3 standing next to him and said to him, ‘Give him the money first’. He gave D3 $1,000 in two $500 banknotes. D1 took out a small transparent bag containing powder from the sleeve of his right sock and gave it to him. He kept the bag in his empty trouser-pocket. He asked D3 his name but D3 did not answer him. He did fiving with D1 and D3 and left them to go to somewhere in the vicinity. He called his supporting teammate DPC Wong and told him the physical features and clothings of D1 and D3. He continued to keep watch on D1 and D3 until he saw DPC Wong intercepted them for enquiry. He went back to Hong Kong Island Headquarters and gave the bag of powder to Exhibit Officer DPC7289 for him to follow up.

About 5 minutes later, DPC Wong went to check the identity of D1 and D3 and got the details of their Form 8s and their personal particulars. The identities of D1 and D3 were established in this way.

I wish to point out here that the only evidence of identification against D3 was the checking of Form 8 at the scene by DPC Wong in the way described above. Regarding D1 and D2, apart from identification obtained in such way, DPC Tsang, over a period of time, came to know them, especially D1. In the operation, DPC Tsang met D1 9 times and D2 3 times. The times were as follows:

(1) 15 April 2016, in relation to Charge 1, he met D1 and D2;

(2) 24 April 2016, D2 only;

(3) 4 May 2016, he met D1 and D2 together;

(4) 25 May 2016, he met D1 and D3 in relation to Charge 2;

(5) 7 June 2016, D1 only;

(6) 20 June 2016, D1 only;

(7) 29 June 2016, D1 only;

(8) 28 July 2016, D1 only;

(9) 27 July 2016, in the small hours of the day, D1 only;

(10) 27 July 2016, 22:30 hours, D1 only.

In relation to D2, DPC Tsang met D1 and D2 on 15 April 2016, around midnight, at 41 D’Aguilar Street near 7-Eleven convenience store. They moved to the Hollywood Road junction with Pottinger Street where cocaine was passed to DPC Tsang by D1. After this incident, DPC Tsang met D2 again two more times on 24 April 2016 and 4 May 2016. In the first time, D2 was alone. In the second time, D2 was with D1 and they were at Hollywood Road junction with Pottinger Street. The time was around midnight and they greeted each other and had some casual chats on where to go for fun.

Regarding D1, apart from the two occasions on 15 April and 25 May 2016, to which Charges 1 and 2 were related, DPC Tsang met D1 7 more times, all around midnight near 7-Eleven convenience store, 41 Wyndham Street there. They greeted each other and had some casual chats, usually on where to go for fun.

DPC Tsang also pointed out that D1 and D2 were usually with a group of black males around there and many of them also knew him as ‘Smiley’. He knew D1 was called ‘Jermat’ and D2 “Bull” but not D3 whom he only met once, on 25 May 2016.

On the evidence of the above evidence, I allowed dock identification on the basis of recognition and familiarity on D1 and D2 but not on D3. On this subject, I should point out that the dock identification would be treated as supplementary evidence only which would not stand alone. DPC Tsang identified D1 and D2 in court.

In the operation which lasted some 5 months, DPC Tsang had posed as undercover agent. He kept an Occurrence Book in which he made records of his activities and observations as soon as practicable. Detective Sergeant 1831 Wong Ting-yu was the handler of the undercover agent and supervised the activities of DPC Tsang. Detective Sergeant Wong would give briefing to DPC Tsang and the supporting teammates every time they went out on duty. DPC Tsang would report to Detective Sergeant Wong after he finished his duty at Lan Kwai Fong. I believe all the dates on which DPC Tsang had met D1 and D2 or D3 were recorded in the Occurrence Book. Therefore, DPC Tsang was assisted in his memory by this Occurrence Book.’ (see pp 31E – 35L of the Appeal Bundle)

STAY OF THE PROCEEDING

5.At the trial, the solicitor representing both D1 and D2 has made an application for permanent stay of the proceeding.  D3 was unrepresented and he did not make the same application.  It was submitted on behalf of D1 and D2 that they were both arrested a few months after the alleged offences.  They were both asylum-seekers and they did not operate an appointment diary or anything similar.  In the absence of either of the occasions being memorable dates, it would be practically impossible for them to remember where they were and whom they were with together in the evenings of the alleged offences.  They were therefore, in effect, deprived of alibi witness.

6.The Magistrate rejected the application of permanent stay on the following grounds:

(1)   there was no inordinate delay in the whole circumstances;

(2)   this case involved two serious charges of trafficking in dangerous drugs and it was in the public interest that there should be a trial for them; and

(3)   no real and material prejudice was being shown to be likely.

THE DEFENCE CASE

7.Among the three defendants, D2 elected not to give evidence but D1 and D3 elected to give evidence.  All defendants called no witness.  The Magistrate described D1 and D3’s evidence as follows:

“ D1 testified briefly about himself and about his presence in Lan Kwai Fong. He came to Hong Kong as a visitor in April 2014. Having stayed for 3 months allowed by the permit, he lodged a torture claim. He went to Lan Kwai Fong from time totime when he felt lonely and brought drinks with the subsistence allowance given by the Hong Kong Government. He now had a fiancée who was a local Chinese woman. He knew D3.

D1 could not remember the times he visited Lan Kwai Fong. However, he could remember that, in 2016, he had visited Lan Kwai Fong 3 times. He denied he sold cocaine there and maintained that those incidents testified to by DPC Tsang concerning him never occurred. He never met DPC Tsang at all.

One would wonder why D1 considered it necessary to go to the witness-box just to deny the charges against him. In fact, he had something more to do. He went out of his way to testify for the purpose of D3. D3 wanted him to tell the court what he saw about D3 in an occasion. D1 witnessed, in one occasion, from a distance, that D3 was being stopped by police for identification check in the street. The police officers wanted to take photograph of D3’s Form 8 and D3 resisted.

D3 also elected to testify. He had a clear record in Hong Kong and should be regarded as a person of good character and of low propensity to crimes. When he was in the witness-box, one would understand why he chose to defend himself in person. No one could present his case better than he himself. He was garrulous and very eager to tell the history of himself in minute details, from the time when he first arrived at Hong Kong to the time shortly before he surrendered to bail in court for trial.

D3 was 28 years old. He was born and grew up in Guinia, West Africa. He received education up to university level and had enrolled as student recently in university in Guangzhou on mainland. He got married with an Indonesian female who was permanent resident in Hong Kong. They got 2 children, one daughter, aged 2 years and 8 months, and one son, 2 months old.

Through the introduction of his friend, he came to Hong Kong in February 2013 as visitor. Then he visited Hong Kong from time to time and various other places in South-East Asia. It seemed that he learned from his friend and carried out some kind of businesses between mainland and Hong Kong. When the hospitality of Hong Kong dried up in June 2014, he lodged a torture claim. D3 used over an hour in the witness-box to tell his story which I just summarised above. He could not be stopped and confined to the relevant matters to the charge he was facing, as he maintained everything he intended to tell the court was relevant and important.

He admitted he came to know D1 in the shelter of International Social Service (ISS), and they became friends. D1 was his witness in his marriage proceeding and had been to his home. He also knew D2 but, having greeted each other in Tsim Sha Tsui from a distance, he never met him again.

The rest of his time in the witness-box, about two hours, was used to highlight that he was treated by police with prejudice for being a black African seeking asylum in Hong Kong. He was sometimes stopped by police in the streets for identification check. The police always sought to photograph his Form 8 and he objected. He was also treated with disdain by police in the police station when he reported in accordance with his bail terms there. The central theme of his stories about such treatments showed that he never took the prejudice against him lying down and resisted.

Regarding Lan Kwai Fong, he told the court that he went there on the first night he arrived at Hong Kong and, later in Hong Kong, took friends there for drinks from time to time. He knew the problems concerning dangerous drugs and the black people gathering there. In 2016, he made a special effort to stay away from that place and warned D1 not to come close to that area. In fact, he himself would not come to the Hong Kong side at all. He denied he had involved in selling any cocaine or any dangerous drugs.

The overall effect of the testimony of D3 is that this is a case of frame-up by police against him and that he was picked as a target because he was a black African asylum-seeker in Hong Kong who chose to resist their harassments against him.” (see pp 36I – 38M of the Appeal Bundle)

THE FINDINGS OF THE MAGISTRATE

8.As said, the Magistrate refused to stay the proceedings.  As for general issue, the court considered the case as a whole and accepted the evidence of all police’s witnesses and rejected all the evidence of D1 and D3. Identification was the only issue in this case.  He fully accepted that the design of the police operation in checking the identity of suspect by his Form 8 was effective and reliable.  The Magistrate found beyond all reasonable doubt that D1 and D3 were guilty as charged.

GROUNDS OF APPEAL AGAINST CONVICTION

9.Both appellants were unrepresented in the present hearing.  In their home-made grounds of appeal, each has advanced arguments against their convictions which can be summarized as follows:

(1)   D1’s ground of appeal against conviction was that the Magistrate was wrong in rejecting his lawyer’s application for permanent stay of proceedings involving potential delay.

(2)   D3 adopted his grounds on his Notice of Appeal (Form 101) arguing that there was no or sufficient evidence to convict him.

10.In his written submissions, D1 maintained his innocence and said that he had not sold any drug to DPC Tsang as alleged.  He complained that the whole police operation was targeting on black Africans and they were just randomly arrested and detained and framed up and sent behind bars for the offences that they have not committed.

11.D1 also submitted that fingerprint examinations were carried out on the packets of drugs (P4 and P6) by government chemist.  No mark of value was found on P4 and P6.  He further complained that there was no DNA evidence and there was no CCTV footage and no photo produced by the police supporting their case. However, the Magistrate still enter convictions and it was therefore unjust to convict them on oral testimony of DPC Tsang alone.

12.D1 also pointed out in the operation, 29 black African asylum-seekers were arrested but no one was found with any dangerous drug.  The operation has lasted for 4 months after the first offence has been committed according to the prosecution evidence and the delay was potential and had seriously prejudiced the defence of each defendant to have a fair trial.

13.D2 adopted the bulk of submissions by D1 in the hearing and complained that the Magistrate just convicted him on the oral testimony of DPC Tsang without any corroborative evidence.  He has expressed discontent that in this police operation, not a single Chinese, south Asian or western people was arrested and he was obviously targeted by the police because he was a black African and he has spoken of an incident in the past when he refused to co-operate with the police during an identity check and he resisted the harassments by the police against him.

DISCUSSION

14.The grounds of appeal against conviction by the two appellants can be dealt with together.

15.As correctly pointed out by the Magistrate, the central issue of the case revolved around the purported identifications by DPC Tsang, the undercover police officer, in this operation. In D1’s case, the identification was even more of a case of recognition as DPC Tsang testified that apart from the identification, he had met D1 for no less than 9 times with exact dates given. That was why the Magistrate allowed, and in my view properly, the dock identification of D1 but refused the same in the case of D3.

16.At the end of the day, the Magistrate, after seeing and hearingboth the police witnesses on the one hand and D1 and D3 on the other, came to the conclusion that he accepted the evidence of all police witnesses and rejected the evidence of D1 and D3 insofar as their evidence were inconsistent with that of police witnesses.  The Magistrate has said in his Statement of Findings that he fully accepted that the design of the police operation in checking the identity of suspect by his Form 8 was effective identification and reliable evidence.

17.In coming to the conclusion as he did, the Magistrate was obviously impressed with the identification of both defendants by DPC Tsang in a covert operation of this nature.  As Power JA (as he then was) also stated when giving the judgment of the Court of Appeal in The Queen v Lee Ho Wai, CACC 379/1988 (unreported, 9 May 1989) at page 8:

“ Firstly, this was a police officer on surveillance duty. This is an important fact. Such a person cannot be equated with a person, such as a robbery victim, who is, almost inevitably, off balance and under stress. In circumstances such as occurred in the present case the jury would be entitled to proceed upon the basis that the police officer was making his observation in a calm and concentrated way.”

18.Furthermore, the conversation between D1 and DPC Tsang when they met again on the following occasions supported the fact that the constable has not mistaken in recognizing him.  If D1 had not met DPC Tsang on 15 April, 2016, he would not have been able to recognize him in the following 8 occasions from May to July 2016.  These facts supported the conclusion that the undercover police officer’s observation on the D1’s face was good enough to the extent that he could recognize D1 each and every time on the subsequent occasions without any mistake.

19.Both D1 and D2 has complained the lack of corroborative evidence in the present case such as CCTV, fingerprint or DNA evidence.  That may be the case but the task of the Magistrate is to try the case before him and not to imagine the defence case and speculate in the absence of any evidence.

20.As the House of Lords stated in their judgment in the leading case R v Turnbull (1976) 63 Cr App R 132, at page 138:

“ A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects upon the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.”

21.Both appellants submitted principally that they were prejudiced in his trial because there was a delay of some 3 months between the date of the offence and the date at which the fact that a complaint had been made came to their attention.  As a result of the delay in proceeding against the appellants, lines of enquiry for the appellants were closed either because independent evidence such as CCTV footage showing the outside of the 7-Eleven shop would be no longer available, or that any witness at the scene of the alleged cocaine sale cannot later be traced.

22.Furthermore, both appellants relied on the fact that there was no fingerprint or DNA evidence found on the packet of drugs.  In short, they complained that the only evidence left in the entire prosecution case was the purported identification by the undercover police officer of the appellants without any corroboration.

23.Both complained that the Magistrate appeared not to have appreciated the significance of delay in arresting them.

24.In my judgment, what really matter is whether the Magistratehas adverted to the danger of convicting the appellants on the identification evidence alone and whether he has scrutinized the evidence with care.  In the application of stay of the proceedings by D1, his solicitor has already emphasized the fact that D1’s defence was hampered as the delay of arrest had made him difficult to call any alibi witness.

25.The Magistrate has correctly acknowledged the fact that the entire prosecution case hinged on the identification evidence alone.  Despite the lack of corroborative evidence, the Magistrate, after seeing and hearing the evidence given by DPC Tsang in the trial was obviously impressed with his evidence and the cogent explanations given by him under cross-examination and came to the conclusion that he was telling the truth and his identification of the both appellants could not be faulted.

26.Where the facts are concerned in an appeal by way of rehearing on the papers, it is always to be remembered that, as Mr Justice Bokhary PJ (with whom the other members of the Court agreed) said in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 at p 78E–F, “the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first‑hand”.  The Magistrate therefore has the advantage of hearing and seeing the witnesses and he is in a better position to determine witnesses’ credibility and the appellate court will not interfere the trial judge’s factual findings unless he is demonstrated to be plainly wrong.

27.I entirely agree with Mr. Sean’s submission in reply that the identification evidence in this case was strong.  The undercover police officer met D1 for 9 times.  In every encounter, D1’s face could be seen clearly.  Also, the undercover police officer had spent time long enough to distinguish one African from another. The evidence is strong and clear that the underlying officer had correctly recognized D1 in the dock not because he was a black African but based on his careful observation and subsequent contacts with D1 during the operation.  As for D3, although it is not a case of recognition, the Magistrate still rejected his evidence and accepted the identification of DPC Tsang as he has good reasons to rely on the design of the police operation in checking the identity of D3 by his Form 8 after the alleged transaction.

28.As to the delay in arresting the appellants and its potential prejudice caused to their defence, it must be remembered that the delay in this case is by no means long, only over 3 months.  The absence of fingerprint or DNA evidence in the packet is neither here or there and is of no evidential value whatsoever.

29.In R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293 at para 27 Brooke LJ observed:

“ It must be remembered that it is a commonplace in criminal trials for a defendant to rely on ‘holes’ in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence.” (emphasis added)

30.Based on the above authority, the decision by the Magistrate not to stay the proceedings cannot be faulted.  As was held in R v Holgate (No 1) [1996] 3 HKC 315, the test in the present case is whether D1 orD3 has shown on a balance of probabilities that his trial was so prejudicedby the unavailability of the so called “missing evidence” that it was beyond the power of the trial magistrate to preside over and hold a fair trial.

31.In the present case, the so-called possible effects on the absence or missing of the alibi witness or CCTV recordings in the defence case are also highly speculative.  The arguments raised by the appellants premised on the presumption that there was indeed a CCTV footage vindicating the appellants or an alibi witness of any evidential value to the defence case.

32.A stay should only be granted if the police’s failure result from such bad behaviour, in the sense of bad faith or serious fault, as to render it unfair that the defendant should be tried at all.

33.Before the Magistrate, apart from the bare assertions from the defence that the delay in arrest was as a result of a frame-up exercise by the police against the defendant, there was no clear evidence to establish such a malpractice by the police.  In all the circumstances, there was therefore no basis for the Magistrate to stay the proceedings.  One should also bear in mind that a fair trial according to law involves fairness both to the defendant and the prosecution and that the trial process itself is equipped to deal with the bulk of the complaint on which applications for a stay are founded.

34.Reading the Statement of Findings as a whole, I cannot say that the Magistrate was plainly wrong to have found the undercover police officer to be credible and that his identifications of the appellants reliable.  Mr. Sean has also reminded me that the Magistrate in the present case is a very experienced professional magistrate.  It is submitted that it cannot be shown that he made any error in law and he assessed the evidence in accordance with established legal principles.

35.Based on the above, the grounds of appeal against conviction by both D1 and D3 are without merit and are dismissed accordingly.

GROUNDS OF APPEAL AGAINST SENTENCE

36.In general, both appellants complained that their sentences were excessive and too severe for the small quantity of drugs in this case.  D1, in particular, criticized the Magistrate of enhancing his sentence on each charge from 18 months to 24 months.  He also criticized the Magistrate’s decision to order a partly consecutive sentence in relation to his two charges resulting in a total of 30 months’ imprisonment.

REASONS FOR SENTENCE

37.In sentencing the appellants, the Magistrate pointed out that:

“ The circumstances of trafficking in dangerous drugs as revealed in this case were commonplace and deep-rooted evils in Lan Kwai Fong area. They appeared to be organized activities of trafficking in dangerous drugs. The police must launch an operation like this case to break them up. Deterrent sentence is called for against such activities, not so much for the small quantity being sold each time but for the activities.”

38.The Magistrate also explained why he considered necessary to enhance the sentence from the usual 18 months starting point for such a small quantity:

“ First of all, although the quantity involved in this case was less than half gramme, I would not attach too much significance to it. I find in such circumstance there must be stock hidden behind the scene and the supply of this small quantity could be unlimited. The second followed from the first feature. I find it was not a situation of a single street-level peddler selling dangerous drugs at a street corner. It was an organised activity in Lan Kwai Fong area, which was a notorious black spot of trafficking in dangerous drugs. So they were organized activities which were widespread.

For these reasons, I find a sentence of 18 months less effective as a deterrent.  It has to be enhanced to 24 months for the activities of this case.  There will not be any discount for conviction after trial.”

DISCUSSION

39.Mr. Sean referred me to HKSAR v DARBOE LANSANA and another HCMA 153/2017 (unreported, 25 July 2017), a magistracy appeal case involving other appellants from Gambia arrested in the same police operation.  The ground of appeal was that the sentence was excessive by reference to comparable cases in the magistrates’ courts. In dismissing the appeal, M Poon J refused to have regards to such results in other magistrates’ courts supplied to her ladyship by the appellants’ counsel, though such were case results of other Gambians arrested in the same police operation.  M Poon J said she would only have authorities,not case results from magistracies.  Her Ladyship also brought to counsel’s attention to the case of HKSAR v Au Kwok Chai HCMA 410/2008 (unreported, 26 June 2008).  It is noted that in that case, at para 11, for very small amount of heroin (less than 1 gramme), Saw J adopted the starting point of 2 years.  In the end, M Poon J dismissed the appeal (HCMA 153/2017) as the starting point adopted by the sentencing magistrate was in line with R v Lau Tak Ming & anor [1990] 2 HKLR 370 and HKSAR v Au Kwok Chai (supra).

40.In the present appeal, based on the above authorities, there is no doubt that the starting point of 24 months as enhanced by the Magistrate was in line with the sentencing guidelines and was entirely proper in the circumstances.  As in the case of D1, there were two separate offences and a partly consecutive sentence with an extra of 6 months’ sentence was therefore just and proper, taking into account the principle of totality.  I entirely agree with the respondent that there is no merit in the appeal against the sentences and they were neither wrong in principle or manifestly excessive.

41.Accordingly, the appeal against sentence by D1 and D3 is also dismissed.

Mr Eddie Sean, SADPP of the Department of Justice, for the respondent

The 1^st and 3^rd appellants appeared in person