HKSAR v. Fu Man Kit

CACC 226/2018

[2019] HKCA 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 226 OF 2018

(ON APPEAL FROM HCCC NO 37 OF 2018)

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J U D G M E N T

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1.By a Form XI Notice filed on 9 August 2018, and having already completed his sentence of 2 years’ imprisonment some two weeks later on 26 August 2018, the applicant applies for leave to appeal against the sentence imposed on him by Campbell-Moffat J on 27 July 2018 following his plea of guilty to a charge of possession of a dangerous drug, namely 13.4 grammes of a crystalline solid containing 13.2 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’), as an alternative to trafficking in the same, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.It should be noted that the applicant’s plea of guilty was entered on the second day of the trial (11 July 2018) and after the empanelment of the jury.

Facts admitted by the applicant

3.On 30 November 2016, at about 18:50 hours, the applicant alighted from a taxi outside Hop Kwai House, Kwai Chung Estate, Kowloon, at which time the police were patrolling in the vicinity.  He was then seen loitering outside Hop Kwai House, where he made some telephone calls and kept looking around.  As a result, at 18:56 hours, he was intercepted by police officers for enquiry.  Upon a search of the applicant’s person, a “lai see” packet containing a re‑sealable plastic bag, which further contained a piece of white tissue wrapping an object, subsequently confirmed to be Ice (the subject matter of the charge), was found in the right trouser pocket of his jeans.  He was arrested for trafficking in the Ice, the estimated street value of which at the time was $4,489.

Mitigation

4.The applicant was 47 years old and divorced.  He was said to be working as a part‑time delivery worker, earning $400 per day. Amongst his four previous convictions, he was convicted in the year 2000 of trafficking in dangerous drugs, for which he was sentenced to 3 years’ imprisonment in the District Court.

Sentencing

5.In passing sentence, the judge said:[1]

“…It is clear...that you were using drugs casually. But you were in possession of 13.2 grammes of ‘Ice’ in public. Those are sufficient hits if you are a casual user, as you suggest you are, for a month…

You had no money on you at the time…and there was considerable further potential for you to hand over whatever drugs you had on you for other social or commercial gain, not least the possibility that you would have supplied it to your girlfriend.”

6.In assessing the appropriate starting point for the offence, the judge was referred by his counsel to the decisions of this Court in HKSAR v Mok Cho Tik[2] and HKSAR v Lai Kam Sang[3].  For possession of 13.2 grammes of Ice, she adopted a starting point of 15 months’ imprisonment, which she enhanced by 1 year for what she described as “the high possibility” of the further distribution of the Ice; and by another three months for his previous conviction for trafficking in dangerous drugs.

7.As for the discount for plea, the judge noted the time at which the applicant had pleaded guilty, namely the second day of the trial, after a jury had been empanelled, and afforded him a 20% discount only in accordance with HKSAR v Ngo Van Nam[4].  In the result, the judge passed a sentence of 2 years’ imprisonment.

Ground of appeal against sentence

8.In his Form XI Notice, the applicant merely complained that the sentence was excessive.  On 21 September 2018, the Court issued a letter inviting both parties to file written submissions.  Such letter was sent to the last known address of the applicant by registered post, but was returned as unclaimed on 16 November 2018.  No written submission has been filed by the applicant.  Ms Ho, on behalf of the respondent, has detailed for me this morning the steps taken by the police to contact the applicant and serve the respondent’s submissions on him.  It is clear that there had been several telephone contacts between the police and the applicant up until 20 November 2018, during which the applicant was also informed of the date of the hearing of this appeal. However, all further attempts to contact the applicant have been in vain.

9.Suffice it to say, I am quite satisfied that every attempt has been made to contact the applicant for the purposes of this appeal but he has made no serious attempt to pursue it, whilst never formally abandoning it.  In those circumstances, I decided that I would hear the appeal in his absence and deliver my judgment orally in open court.

Respondent’s submissions

10.Ms Ho submits that there can be no complaint about the starting point, the level of enhancement for the latent risk of trafficking in such a substantial quantity of Ice, the enhancement for the applicant’s previous conviction for trafficking and the final sentence, since neither the starting point, the individual enhancements nor the resultant sentence could be said to be manifestly excessive.

Discussion

11.The applicant cannot complain about the starting point of 15 months’ imprisonment for the offence of possession nor the enhancement for the obvious possibility, in the applicant’s circumstances and with his antecedents, of his re‑distributing such a sizeable quantity of dangerous drugs.  Had the applicant been convicted of trafficking in this amount of Ice, he would have merited a sentence after trial of at least 7 years’ imprisonment.  Accordingly, it cannot be said to be an insubstantial quantity.

12.An appeal court will look at the final sentence passed upon the applicant, given the circumstances of his possession of a not insubstantial quantity of Ice on the street in a public housing estate, his background and the time at which the plea was entered; whatever may have been the individual steps which brought the judge to her ultimate sentence.  I cannot say that there are reasonably arguable grounds of appeal against the overall sentence of 2 years’ imprisonment.

13.The applicant has the right to re‑apply for leave to appeal against sentence to the Court of Appeal, but he is also warned of that Court’s powers to order loss of time of part of the time he has already spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

Ms Lily Ho SPP, of the Department of Justice, for the Respondent

The Applicant was not represented and did not appear