HKSAR v. Tsang Ka Man
Read the full judgment text of CACC 296/2017 on BabelCite. This Court of Appeal judgment was delivered on 9 May 2018.
1. At about 9 pm on 15 October 2015, police officers carried out an anti-drug operation at No 495 Shanghai Street, Mongkok. The target unit was on the 2/F of the building.
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[English Translation – 英譯本] CACC 296/2017 [2018] HKCA 277 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 296 OF 2017 (ON APPEAL FROM HCCC 200/2016) __________________
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REASONS FOR JUDGMENT Hon Yeung VP (giving the Reasons for Judgment of the Court): Background facts 1.At about 9 pm on 15 October 2015, police officers carried out an anti-drug operation at No 495 Shanghai Street, Mongkok. The target unit was on the 2/F of the building. 2.At about 10 pm the same day a man opened the main door of the target unit with a key. Police officers proceeded to enter the unit. There were 5 sub-let rooms in the unit. The man claimed that he lived in Room A. Police officers immediately entered Room A to investigate. 3.There was a living room, a bedroom and a toilet in Room A. At that time there were two people beside a mahjong table in the living room and there were suspected dangerous drugs and paraphernalia for taking dangerous drugs on the mahjong table. 4.The applicant (Tsang Ka-man) and another two people, on the other hand, were in the bedroom. The applicant was sitting in front of a three-tiered rack with her back to the room door while the two people were sitting on the bed. The applicant had a spoon in her hand at the time. There were some plastic bags containing suspected dangerous drugs and packing tools on the top layer of the three-tiered rack. 5.The applicant produced an acknowledgement of application for an identity card bearing the name Hui Mei-ling Macy to the police officers. The applicant claimed that she was Hui Mei-ling Macy whose name was shown on the acknowledgement of application for an identity card. 6.Upon search, police officers found a large quantity of dangerous drugs and paraphernalia for taking dangerous drugs on the mahjong table and another table in the living room and on the top layer of the three-tiered rack in the bedroom. Police officers also found in the applicant’s handbag 19.78 grammes of a crystalline solid containing 19.12 grammes of “Ice”. 7.The applicant said under caution that the dangerous drugs found upon search in her handbag were for her own consumption, and the other dangerous drugs found upon search in Room A belonged to her and would be sold to customers for consumption. 8.Dangerous drugs found by police officers upon search in Room A and the applicant’s handbag included: (1) 121.03 grammes of a crystalline solid containing 117.04 grammes of “Ice” with a value of $38,245; (2) 0.51 grammes of a mixture containing 0.29 grammes of heroin with a value of $381; and (3) 0.09 grammes of a solid containing cocaine with a value of $96. 9.The applicant once asserted that she was Hui Mei-ling Macy but later admitted that the acknowledgement of application for an identity card bearing the name of Hui Mei-ling Macy was given to her by a friend. The purpose of her using the acknowledgement was to avoid arrest as she was a wanted person. The applicant stated that her real name was Tsang Ka-man. She also admitted that she had used and signed the name of Hui Mei-ling Macy on various occasions in the course of police investigation. 10.According to the Agreed Facts, the applicant admitted that all the dangerous drugs found by the police in the search, including the “Ice” found in her handbag, were for unlawful trafficking on her part. 11.By reason of the above incident, the applicant was charged with one count of “trafficking in a dangerous drug” and one count of using a false instrument. 12.On 15 September 2017, the applicant pleaded guilty to all charges before Barnes J (trial judge) in the Court of First Instance and was sentenced to a total of 9 years’ imprisonment. The applicant applied for leave to appeal against sentence. After the hearing, we dismissed the application. Below are the reasons for our judgment. The background of the applicant and the mitigation 13.The applicant, aged 38, is married with two children who are 17 and 12 years old. 14.The applicant had 3 previous convictions, one of which was an offence of criminal damage and another an offence of possession of a dangerous drug. The applicant had been sentenced to a Drug Addiction Treatment Centre for the offences of possession of a dangerous drug and “jumping bail”. 15.The applicant was an abuser of “Ice”. She said that at the time of the offence she was unemployed, so she agreed to assist others in supplying dangerous drugs to other drug addicts in exchange for dangerous drugs for her own consumption. The applicant indicated that she was on the wanted list. In order to avoid recall to the Drug Addiction Treatment Centre, she used a false document to conceal her identity. 16.The applicant’s mother and children pleaded to the court in mitigation for the applicant. The trial judge’s reasons for sentence 17.The trial judge stated that most of the drugs in question were “Ice”, the quantity of which was 117.04 grammes. The appropriate starting point for that quantity of “Ice” alone was 12 years’ imprisonment. The trial judge went on to point out that although the case also involved cocaine and heroin, the quantities of the two types of drugs were very small. If cocaine and heroin were treated as “Ice” in calculation, the impact on sentence was not significant. Therefore, the trial judge decided to adopt 12 years’ imprisonment as the starting point. 18.At the same time the trial judge indicated that there were two aggravating factors in the case:
19.The trial judge said that although the applicant was not the mastermind in the case, the above two aggravating factors justified an enhancement of the basic starting point of 12 years by one year. 20.Thus, the trial judge adopted 13 years as the starting point for the offence of “trafficking in a dangerous drug” in Charge 1 and reduced the term by one third to 8 years and 8 months on account of the applicant’s guilty plea. 21.As regards the offence of using a false instrument in Charge 2, the trial judge indicated that the applicant used a proof of identity which related to another person to deceive a police officer, preventing him/her from knowing that she was a wanted person. The offence was also serious. The trial judge adopted 18 months as the starting point for Charge 2 and reduced the term by one third to 12 months on account of the applicant’s guilty plea. She ordered 4 months of the 12-month term to run consecutively to the term of 8 years and 8 months on Charge 1, making a total sentence of 9 years. Grounds of appeal 22.Mr Albert Luk, counsel for the applicant, raised no objection to the starting point of 12 years adopted by the trial judge nor the sentence for Charge 2. Mr Luk agreed that Room A could be regarded as a divan but the applicant might have no knowledge of it. Hence, the trial judge should not have treated the fact that Room A in question was a divan as an aggravating factor and enhanced the starting point for Charge 1 by one year to 13 years’ imprisonment. 23.Mr Luk stressed that a defendant should only be punished for what he had been charged with and not for other offences he was not prosecuted for. Mr Luk pressed the point that there was no evidence that the applicant committed the offence of opening, keeping, managing or assisting in the management of a divan. Thus, the trial judge should not have treated the fact that Room A in question was a divan as an aggravating factor. Mr Luk submitted that the effect of the approach adopted by the trial judge was to punish the applicant for an offence she was not prosecuted for. This was unfair to her. 24.In his written submission, Mr Luk contended that there was simply no evidence whatsoever in the case that Room A in question was a divan. However, when he presented his submissions to the court, he made a minor concession and agreed that objective evidence showed that Room A was a divan. Nevertheless, he submitted that there was no evidence to show that the applicant had knowingly taken part in the management of Room A. Mr Luk contended that the trial judge erred in principle in enhancing the sentence by one year on account of the fact that Room A was a divan and the enhancement was excessive. 25.Mr Luk relied on another ground of appeal which was not included in the Perfected Grounds of Appeal. He submitted that the objective factors showed that part of the drugs in question was for the applicant’s own consumption. Mr Luk emphasized that the applicant stated clearly under caution that the 19.12 grammes of “Ice” found upon search of her handbag was for her own consumption. However, the trial judge failed to give her a discount in sentence on the ground that part of the drugs in question was for the applicant’s own consumption. Discussion 26.In passing sentence for a criminal offence, apart from considering the nature of the offence and the circumstances leading to the offence, the court must take account of factors like the background of the individual defendant, the role played by him in the course of the offence and the degree of his involvement to determine his culpability and use it as the basis for sentencing. 27.In “drug trafficking” cases, in order to ensure consistency in sentencing and sufficient deterrent effect and prevent offenders from trying their luck, the Court of Appeal has laid down fundamental sentencing guidelines according to the nature and quantity of the dangerous drugs. 28.In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal laid down firm sentencing guidelines for trafficking in “Ice”. According to these guidelines, the starting point for trafficking in 70 to 300 grammes of “ice” is 11 to 15 years’ imprisonment. The present case involves 117.04 grammes of “Ice”. Purely on a mathematical basis, it was proper for the trial judge to adopt 12 years as the starting point. 29.The guidelines laid down by the Court of Appeal according to the types and quantity of dangerous drugs, however, are not a straitjacket. 30.The Court of Appeal laid down sentencing guidelines for trafficking in heroin in The Queen v Lau Tak Ming & others [1990] 2 HKLR 370. It divided the starting points into 5 bands according to the quantity of the narcotic:
31.The Court of Appeal also made it clear that within the above-mentioned bands of starting points, the court still had a discretion to take into account other aggravating / mitigating factors to adjust the sentence as long as the ultimate sentence fell within the sentencing band concerned. 32.The Court of Appeal stated in Lau Tak Ming at page 386E-F that:
33.The undisputed facts showed that many people were present in Room A at the time of the offence. At various places in the room, there was a large quantity of “Ice” and a small quantity of heroin and cocaine as well as various kinds of apparatus for smoking “Ice” including plastic bottle/s and glass bottle/s containing liquid containing “Ice”. At the time of the arrest the applicant, with a spoon in her hand, was together with two men in the room. There was a large quantity of “Ice” and paraphernalia for packing dangerous drugs and smoking dangerous drugs on the top layer of the three-tiered rack in front of her. 34.When plea was taken, the applicant admitted that all of the dangerous drugs were for the purpose of unlawful trafficking. Under caution she had at least also said that other dangerous drugs in Room A “… were all mine. I sold (them) to customers for consumption”. In the applicant’s handbag there was a notebook containing records which were highly likely to be related to drug transactions. 35.It is very obvious that the applicant was not a drug trafficker who merely delivered or stored dangerous drugs for others. In light of the background of the case and the undisputed evidence, the inference that the applicant supplied “Ice” to drug addicts in Room A for them to smoke “Ice” on the spot is absolutely reasonable, irresistible and correct. 36.The trial judge did not punish the applicant for an offence she was not prosecuted for. In passing an appropriate sentence on the applicant, the trial judge proceeded on the basis of the role played by the applicant in the commission of the offence of “trafficking in a dangerous drug” and the degree of her involvement. 37.The trial judge regarded Room A as a divan and took the view that the fact that the applicant supplied “Ice” therein to drug addicts was one of the aggravating factors. The approach taken by the trial judge was correct and we agree with it. 38.Apart from the above aggravating factor, another aggravating factor is that the case involves three different types of drugs. The trial judge saw that factor as an aggravating factor and Mr Luk did not raise any objection to it. 39.As far as the two aggravating factors are concerned, it was already lenient of the trial judge to increase the starting point of 12 years to 13 years in dealing with the applicant. The applicant had absolutely no reasonable basis to complain. 40.In “drug trafficking” cases, it is a mitigating factor that a significant proportion of the drugs in question is for the own consumption of the defendant. The range of discount is 10% to 25% (See HKSAR v Wong Suet Hau & another [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116, HKSAR v Tam Ling Yuen (unreported CACC 159/2015) and HKSAR v Liu Ming Sze [2017] 1 HKLRD 297). 41.Although the applicant had said under caution at the time of arrest that the “dangerous drugs” found upon search of her handbag were for her own consumption, the prosecution obviously did not accept the applicant’s position and her one-sided assertion then. In fact, the brief facts agreed by both parties stated that all the dangerous drugs in question, including the “dangerous drugs” found upon search in her handbag, were for the purpose of unlawful trafficking on the part of the applicant. 42.At trial, Mr Cheung who represented the applicant not only agreed that the applicant trafficked all the drugs in question but also stated upon the trial judge’s enquiry that the defence had no basis to put forward the ground that a significant proportion of the drugs in question was for self-consumption in mitigation of sentence. Mr Cheung was right in doing so because that ground for reducing sentence lacks supporting evidence and is even inconsistent with the brief facts agreed by both parties. 43.The trial judge had no basis to reduce the sentence on the ground that a significant proportion of the drugs in question was for the applicant’s own consumption. Further, the applicant may not put forward the said ground at the appeal stage in support of her application for leave to appeal against sentence. 44.The grounds of appeal advanced by Mr Luk simply should not have been advanced, let alone had any prospect of success. In light of the quantities and types of drugs involved in the case and the applicant’s modus operandi, the sentence of 8 years and 8 months imposed on the applicant for Charge 1 is far from manifestly excessive. It is rather lenient indeed. 45.As regards the fact that 4 months of the 12-month term for Charge 2 were to run consecutively to the sentence for Charge 1, the applicant did not have any complaint. The approach to sentencing for the said charge adopted by the trial judge was also correct and reasonable. Conclusion 46.There is no merit at all in the applicant’s appeal against sentence. Therefore, we dismiss the applicant’s application for leave to appeal against sentence and uphold the sentence. Postscript 47.As the grounds of appeal and arguments advanced by Mr Luk are not arguable at all and should not have been advanced by a reasonable and competent counsel, this court considers it necessary to make some observations on the way the present appeal was handled. 48.We want to first reiterate that pursuant to Practice Direction 4.2, it is the duty of the counsel dealing with criminal appeals, in settling grounds of appeal, to ensure that:
49.When a defendant convicted of or sentenced for an offence wishes to lodge an appeal, it is the duty of the solicitor and counsel acting for him to explain truthfully and ably to him whether the appeal he wishes to lodge has merit or not. Irresponsible or incompetent advice will mislead the defendant and his relatives and friends, causing them to have the unrealistic illusion that the appeal has a prospect of success. When the illusion is shattered, it will only deepen the mental and financial hardship suffered by the defendant and his relatives and friends and lead to them having a negative impression of the legal profession and even the whole judicial system. Appeals without merit will also waste the court’s time and indirectly delay other cases which warrant being dealt with by the court as soon as possible. If the defendant who lodges the appeal is on legal aid, an appeal without merit is even an unreasonable act of wasting public funds. 50.In approving a defendant’s application for legal aid on the advice of solicitor or counsel so that he can appeal against conviction and /or sentence, the Legal Aid Department has the duty to consider independently whether the appeal is reasonably arguable, not merely rely on the advice of solicitor or counsel. 51.If some solicitors or counsel who often indicate that there is room for reasonable argument in a case comment, for the purpose of enabling the defendant to obtain legal aid, that an appeal is reasonably arguable but the outcome turns out to be otherwise, it is even more necessary for the Legal Aid Department to analyse their advice carefully and take the advice and approve the application for legal aid to proceed with the appeal only when it agrees that the arguments in the case are arguable. The granting of legal aid on plainly wrong advice not only fails to serve justice but also leads to the mischief stated above, contrary to the rule of law.
Mr Gary Leung ASPP, of the Department of Justice, for the respondent Mr Albert Luk, instructed by Lau & Co. TC and assigned by the Legal Aid Department, for the applicant Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. |
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