HKSAR v. Chang Kin Chow

CACC 149/2017
[2018] HKCA 115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 149 OF 2017

(ON APPEAL FROM HCCC 117 OF 2016)

------------------------

------------------------

Before:  Hon McWalters JA in Court

Date of Hearing:  23 February 2018

Date of Judgment:  23 February 2018

Date of Reasons for Judgment: 5 March 2018

__________________________

REASONS FOR JUDGMENT

__________________________

1.On 12 May 2017 the applicant appeared before Madam Justice M Poon J (“the judge”)and pleaded guilty to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one count of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177. The first count alleged that the applicant trafficked in 4.49 grammes of a crystalline solid containing 4.36 grammes of methamphetamine hydrochloride. The second count alleged that he trafficked in 32.1 grammes of a crystalline solid containing 31 grammes of methamphetamine hydrochloride. In this judgment I shall henceforward refer to this drug as “Ice”.

2.On the same day he was sentenced to 2 years’ imprisonment on the first count and 70 months’ imprisonment on the second count, with the sentence for the second count ordered to run concurrently with the sentence for the first count.  In respect of the third count he was sentenced to 12 months’ imprisonment and this sentence was ordered to run consecutively to the sentence imposed in respect of counts 1 and 2.  He was, therefore, sentenced to a total period of 82 months’ imprisonment.

3.The applicant subsequently applied for leave to appeal his sentences. 

4.At the hearing of the application I refused it and said I would hand down my reasons for doing so at a later date.  This I now do.

The background to the offence

5.The applicant was intercepted by police officers as he sat in a private car near Hong Wo House, Wo Che Estate, Shatin, New Territories. When searched by the police, two plastic bags containing the “Ice” the subject of the first count were found in his trousers pocket.  He was arrested and under caution he stated:

“The ‘ice’ is for my own consumption.”

6.The applicant was brought back to his residence and a search was conducted of it.  On a coffee table the police officers found a plastic bottle with plastic straws that could be used for consuming Ice.  They also found another plastic bottle containing 102 millilitres of a liquid containing traces of Ice.  Under caution the applicant said:

“This pot is used for smoking the dangerous drug ice by me.”

7.In a wardrobe the police found one reusable shopping bag containing, amongst other items, 4 plastic bags containing the “Ice” the subject of the second count, 2 electronic scales and one pair of tweezers. Under caution the applicant stated:

“All these things are mine. I obtained (them) for selling (them so as to) earn a little for my own consumption only.”

8.In a subsequently conducted video record of interview the applicant claimed that he had recently bought these drugs for $3,000 and it was his intention to keep some of them for his personal consumption while the rest would be for sale.  However, he was arrested before he was able to sell any of the drugs.  He claimed he took one gramme of Ice per day which cost him around $300.  

9.The estimated street value of the “Ice” seized was $11,855.

10.On a desk in his residence the police also found a Hong Kong Identity Card bearing the number K589915(A) which related to another person.  Under caution the applicant said:

“I bought this identity card from somebody for $500 in (an) amusement game centre in Causeway Bay … I bought it for renting a flat with another identity in future … The identity card was bought a long time (ago) … I intend to use it for renting a flat only.”

11.Subsequent enquiries revealed that the original holder of this identity card had reported its loss in 2006.

The mitigation

12.At his sentencing hearing the applicant was represented by Mr Victor Ho who informed the court that the applicant had a 3½ years old son and prior to the offence he worked as a casual worker in a construction site, earning on average around $16,000 per month.  Mr Ho said it was his instructions that the applicant was not a professional drug trafficker and had full time employment between 2013 and the day of his arrest. 

13.Mr Ho submitted three documents to the court.  The first was a letter written by the applicant, the second was an MPF statement which evidenced the applicant’s employment and the third was a Construction Industry Safety Training Certificate.  This last document showed that the applicant had attended and obtained this certificate before he worked at the construction site.

14.In respect of counts 1 and 2, Mr Ho indicated that the applicant was remorseful and assured the court that this would be the last time he would be involved in criminal conduct as he wanted to be available to raise his son. 

15.Mr Ho also submitted on behalf of the applicant that of the total “Ice” in counts 1 and 2, “a small amount, I would say 10%, was used by the defendant for his self-consumption.” In response to this assertion the judge queried whether it could be said 10% was a significant proportion in terms of the judgment of the Court of Appeal in HKSAR v Wong Suet Hau & Another[1]. The judge also queried whether there was any evidence to support this claim, referring to what is commonly encountered when such claims are made of a discernible amount of drugs for personal consumption being kept separately from those that are to be sold.

16.The applicant had a criminal record, dating back to 1988, consisting of 22 entries reflecting a far greater number of convictions, many of which were for drug offences.  The first drug related offence was possession of a dangerous drug in 1993.  He also had similar convictions in 1994, 1995 and 1997.  In 1998 he was convicted of both trafficking and possession of dangerous drugs to which he was sentenced to 2 years 8 months’ imprisonment and 1999 he was convicted of trafficking in a dangerous drug for which he was sentenced to 4 years 9 months’ imprisonment.  He had further convictions for possession of a dangerous drug in 2005, 2007 and 2012.

17.The applicant also had two prior convictions for the offence of possession of an identity card of another.  These occurred in 1999 and 2007.  On the first occasions he was sentenced to 15 months’ imprisonment and on the second occasion to 12 months’ imprisonment.

18.The applicant was aged 45 at the time of his sentencing.

The judge’s Reasons for Sentence

19.After setting out the facts the case and the background of the applicant the judge said:

“In sentencing the defendant, I have regard to the facts of the case, the drugs, his previous convictions, the guidelines and the letters and documents submitted by the defence.”

20.The judge went on to note the guideline for trafficking in Ice as laid down in the Court of Appeal’s decision of HKSAR v Tam Yi Chun (No2)[2] under which trafficking in 10 to 70 grammes of Ice attracts a starting point ranging from 7 to 11 years’ imprisonment.  She then aggregated the drugs in counts 1 and 2 to reach a total of amount of narcotics of 35.36 grammes.  She considered a starting point of 105 months to be appropriate for this quantity of drugs. 

21.The judge then addressed the issue of the claim by the applicant that 10% of the drugs seized were for his own consumption.  She said of this submission:

“… I have considered the following factors in accordance with the case of Wong Suet Hau. Firstly, the total weight of the narcotics; secondly, the drugs found in his flat were wrapped in four bags; he was intercepted at a carpark, boarding a vehicle, ignited the engine, and it is clear that he was going to deliver drugs to someone in respect of the 1st charge because it is unlikely and unusual that the drugs for his own consumption he would carry around and board a vehicle with the drugs that he wanted to consume.

There were paraphernalia associated with consumption of drugs in his residence and he has both previous records of possession and trafficking in dangerous drugs and claimed to be still so addicted. As I have said to his counsel, whilst it is not uncommon for drug addicts to feed their own consumption by trafficking, that the defendant might consume a small amount from the drugs seized in question, I do not accept that a significant portion or discernible portion of the drugs which warrant an extra adjustment to sentence were for his own consumption.”

22.The judge then proceeded to sentence the applicant to a total of 70 months’ imprisonment for the first two counts and in relation to the third count she imposed the sentence of 12 months’ imprisonment which she ordered to run consecutively to the sentences for the first two counts.      

The applicant’s grounds of appeal

23.The applicant is not represented and has not filed any Perfected Grounds of Appeal.  However, in a submission attached to his Form XI he said that his reasons for appealing were as follows:

“(1) The aforesaid offences were committed on the same day. The trial judge should have taken this into consideration when imposing sentence and (determining) the length of sentence.

(2) I have pleaded guilty for the third charge but the trial judge did not consider the one-third discount.

(3) Did the trial judge consider the totality (principle) for sentencing (?) (He/she) was extremely unfair to me.

(4) In the mitigation, defence counsel explained that part of the drugs was for self-consumption and the urine test report also (said I had) taken drugs.  However, the judge did not accept this.”     

24.In a subsequent letter written to the court which was received on 31 August 2017 the applicant repeated the same complaints.

25.At the hearing of his application the applicant said he had nothing to add to his written materials.

Discussion

26.I do not consider any of the applicant’s complaints reasonably arguable. 

27.In respect of his claim that part of the drugs were for his own consumption, the applicant’s counsel asserted that only 10%, which he described as “a small amount”, fell into this category.  I agree with Mr Ho that 10% is only a small amount and I do not regard it as being reasonably arguable that 10% is a significant proportion of the whole of the drugs. The judge was perfectly entitled to not take this aspect of the applicant’s mitigation into account when arriving at a final sentence. 

28.In respect of the identity card offence, the judge did not discount by one third the sentence for this offence solely because she relied upon established authority that a 12 month sentence for this offence was the appropriate sentence after a plea of guilty.[3]  This 12 months’ sentencing guideline already factors in the one third discount for a plea of guilty. 

29.The fact that all offences were committed on the same day is irrelevant.  It is now settled law that when sentencing for multiple offences the question the court must address is not whether the offences were committed at the same time or could be said to form one transaction but whether each offence adds to the overall culpability of the offender.[4]  Clearly, the third count was completely different in nature from the first two counts and did add to the overall culpability of the applicant.  The judge was right to conclude that, as a matter of sentencing principle, the sentence for this count could be ordered to be served consecutively to the sentences for the drug counts.

30.That left the issue of whether, notwithstanding that the law allowed the imposition of consecutive sentences, in the circumstances of this offender and these offences she should impose a consecutive sentence.  This decision required a consideration of the totality principle.  There is no clear indication that in respect of this applicant the judge failed to have regard to the totality principle, especially given that it was a matter specifically raised by Mr Ho in the course of his address in mitigation.  I do not regard it as reasonably arguable that the judge failed to have regard to the totality principle.  In any event, I am of the view that it is not reasonably arguable that making the sentence wholly consecutive resulted in it being manifestly excessive.

Conclusion

31.For these reasons I refused the applicant leave to appeal his sentences.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The applicant appeared in person